Can a Montana consumer contract waive the protections of Montana's consumer-protection statutes?
Not where a statute says so expressly, and Montana has at least one such express, unqualified waiver-void rule on the books. The Montana Unfair Trade Practices and Consumer Protection Act (MUTPA) states its core prohibition broadly and without a stated waiver mechanism: “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful” (§ 30-14-103, MCA). Young v. Era Advantage confirms Montana courts apply it exactly as written, quoting the section for that proposition and adding the judicial gloss that an unfair practice is one “contrary to established public policy and which is either immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” Separately, and more explicitly on the waiver question this rule asks, Montana's Plain Language in Contracts Act contains its own flat rule: “A consumer may not waive the rights provided by this part, and any such waiver is void” (§ 30-14-1113(2), MCA), and subsection (1) preserves every “claim or…defense that would have been available to the consumer if this part were not in effect”: i.e., the Act's protections are a FLOOR, not a ceiling that displaces other consumer remedies. The right that cannot be waived is a concrete one. § 30-14-1103 requires that “[a] consumer contract must be written in plain language”, and it is written in plain language if “(a) it is written in a clear and coherent manner using words with common and everyday meanings; (b) it is appropriately divided and captioned by its various sections; (c) it uses type of readable size; (d) it uses ink that contrasts with the paper.”
The trap
§ 30-14-1113's waiver-void rule is scoped to “this part” (the Plain Language in Contracts Act, §§ 30-14-1101 through 1113), and the Act's own scope section carries two limits, of which the first is the one most contracts fail. § 30-14-1104(1) reaches only “any agreement in connection with a consumer contract entered into in this state between a consumer who is a resident of this state at the time of the transaction and a seller, lessor, or lender”, so an out-of-state consumer, or a contract formed elsewhere, falls outside the Act and outside its waiver-void rule before any carve-out is reached. Then § 30-14-1104(2) takes out consumer contracts in which the value of the money, property or services exceeds $50,000, securities or commodities accounts, insurance policies subject to Title 33, government sellers, lessors and lenders, tariffed public-utility service and transfers of real estate, so the waiver-void rule does not reach every consumer agreement. And subsection (3) protects a drafter who had no choice about the words: “[t]he use of specific language expressly required or authorized by a court decision, state or federal statute or administrative rule, or governmental agency is not a violation of this part”, nor is a legal description of real property. MUTPA itself is broader in subject matter but contains no comparably explicit waiver-void provision: all 29 published sections in the §§ 30-14-101 to 145 range were read and not one of them uses the word waiver in any form: § 30-14-105 lists MUTPA's EXEMPTIONS instead (conduct regulated by the Public Service Commission or state auditor, and innocent publishers/broadcasters of a deceptive ad), which is a different kind of limit than a waiver rule and does not answer whether a MUTPA claim can be contracted away by the consumer directly. Do not conflate the two statutes' protections when drafting: a waiver clause that survives MUTPA (because MUTPA's own text does not expressly void waivers) could still be void under the Plain Language Act if the contract also falls within that Act's separate scope.
9 authorities
- statuteMont. Code Ann. § 30-14-103enactment date not established
The words that state the rule
Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.
- statuteMont. Code Ann. § 30-14-1113enactment date not established
The words that state the rule
Nothing in this part precludes a consumer from making any claim or raising any defense that would have been available to the consumer if this part were not in effect.
- statuteMont. Code Ann. § 30-14-1113enactment date not established
The words that state the rule
A consumer may not waive the rights provided by this part, and any such waiver is void.
- statuteMont. Code Ann. § 30-14-105enactment date not established
The words that state the rule
This part does not apply to: (1) actions or transactions permitted under laws administered by the Montana public service commission or the state auditor; or (2) acts of a retail merchant, publisher, owner, agent, or employee of a newspaper, periodical, or radio or television station or advertising agency in the publication or dissemination of an advertisement when the merchant, publisher, owner, agent, or employee did not have knowledge of the false, misleading, or deceptive character of the advertisement.
The words that state the rule
The MCPA prohibits “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce[.]” Section 30-14-103, MCA. An unfair trade practice is one that is “contrary to established public policy and which is either immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.”
- statuteMont. Code Ann. § 30-14-1104enactment date not established
The words that state the rule
Section 30-14-1103 does not apply to: (a) consumer contracts in which the value of the money, property, or services bought, leased, or borrowed exceeds $50,000 at the time of the contract; (b) consumer contracts in which securities or commodities accounts are bought, leased, or borrowed; (c) an insurance policy or contract that is subject to the provisions of Title 33; (d) a seller, lessor, or lender, if it is a government agency or instrumentality; (e) the provision of public utility service under tariffs approved by the public service commission; or (f) a transfer of real estate.
- statuteMont. Code Ann. § 30-14-1103enactment date not established
The words that state the rule
A consumer contract must be written in plain language. (2) A consumer contract is written in plain language if: (a) it is written in a clear and coherent manner using words with common and everyday meanings; (b) it is appropriately divided and captioned by its various sections; (c) it uses type of readable size; (d) it uses ink that contrasts with the paper.
- statuteMont. Code Ann. § 30-14-1104enactment date not established
The words that state the rule
Except as provided in subsection (2), 30-14-1103 applies to any agreement in connection with a consumer contract entered into in this state between a consumer who is a resident of this state at the time of the transaction and a seller, lessor, or lender.
- statuteMont. Code Ann. § 30-14-1104enactment date not established
The words that state the rule
The use of specific language expressly required or authorized by a court decision, state or federal statute or administrative rule, or governmental agency is not a violation of this part; nor is a legal description of real property a violation of this part.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.