3 My Consumer Outline

3 My Consumer Outline - My Consumer Outline There are 4...

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My Consumer Outline There are 4 separate claims under the DTPA – §17.50 Violation of laundry list Breach of an express or implied warranty Unconscionable action Violation of Art. 21.21 – Insurance Code Only violation of the laundry list and unconscionability provisions were created by the legislature as part of the DTPA. Breach of warranty and Insurance Code violations exist independently of the DTPA. In order for P to maintain a successful DTPA claim, P must show 3 things: 1. P is a consumer as defined by the act in §17.45 2. D committed one of the actions specified in §17.50(a)(1), (2), (3), or (4). 3. D’s action was the producing cause of the damages. Consumer – Definition in §17.45(4). Type the definition. Seek and acquire o A major issue that comes up is whether the person “seeked or acquired” the good. Martin v. Lou Poliquin Enterprises – two pronged test for a consumer who did not actually acquire a product: Good faith intention to purchase. Capacity or ability to purchase. Holeman v. Landmark Chevrolet Corp. – was offer to purchase a car for $100 in good faith? Both a subjective (actual belief) and objective (reasonable belief) test. Here Ct. ruled that the Ps were not consumers because there was evidence that they were trying to “bust” the dealership. Incidental beneficiaries do not acquire. Ex. Passenger is not a consumer with respect to a car. Borrower is not a consumer. Purchase or lease o Art 2 of UCC provides that purchase includes taking by sale, discount, negotiation, mortgage, pledge, lien, issue or re issue, gift or any other voluntary transaction creating an interest in property. (Most likely the controlling definition, but not a question that has been answered specifically). o Truly free services or goods are not covered by the DTPA. But purchase is broadly defined. o Different Issues: Free samples - still counts as a consumer b/c there is a bargained for X-change – you give feedback on the free sample as to whether
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or not you like it. “Free gift” - in X change for sitting through a sales representation may be a purchase since the consumer has provided the consideration for it in the form of his time spent in the presentation. One person buys it and it hurts another – Wellborn v. Sears, Roebuck – Mom buys a garage door opener and it kills son. One may acquire goods or services that have been purchased by another for the P’s benefit; therefore, Son is not mere incidental user, but it was purchased for his benefit, so he is a consumer. Goods or services – Defined in §17.45(1) and (2) o DTPA does not cover the sale of securities. They are covered by the the TX Securities Act. Youngblood. o
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3 My Consumer Outline - My Consumer Outline There are 4...

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