Can our consumer terms disclaim or limit rights, or hedge with 'void where prohibited'?
No consumer contract, warranty, notice or sign may contain a provision by which the consumer waives rights under the Truth-in-Consumer Contract, Warranty and Notice Act; any such provision is null and void. A seller, lessor, creditor, lender or bailee also may not offer or enter into a written consumer contract, or give or display a written consumer warranty, notice or sign, containing any provision that violates a clearly established legal right of a consumer or responsibility of the seller as established by State or Federal law when the contract is signed or the notice displayed. The Act's own remedy is what a violation costs: the violator is liable to the aggrieved consumer for a civil penalty of not less than $100 or for actual damages, or both at the consumer's election, with reasonable attorney's fees and court costs, recoverable by action or counterclaim, and the consumer may petition the court to terminate a contract that violates § 56:12-15, which the court in its discretion may void (§ 56:12-17).
The trap
The trap is the severability hedge, and New Jersey polices it by statute. § 56:12-16 forbids a consumer contract, notice or sign from stating that any of its provisions 'is or may be void, unenforceable or inapplicable in some jurisdictions' WITHOUT specifying which provisions are or are not void, unenforceable or inapplicable within New Jersey, so the boilerplate 'some jurisdictions do not allow the exclusion of incidental or consequential damages, so the above may not apply to you' is itself the violation unless it names New Jersey. (Warranties are carved out of that last sentence.) Note the scope limits in § 56:12-15: 'consumer' means an individual buying, leasing, borrowing or bailing primarily for personal, family or household purposes, and the Act does not reach residential leases, sales of real estate, or new-home construction under the New Home Warranty and Builders' Registration Act. The Act's own price is § 56:12-17's $100-minimum penalty per aggrieved consumer, or actual damages, plus fees, the number that scales across a customer base, and separately the Consumer Fraud Act makes treble damages and reasonable attorneys' fees MANDATORY ('the court shall') for an ascertainable loss. The two stack by the Act's own terms: its rights, remedies and prohibitions are declared "to be in addition to and cumulative of any other right, remedy or prohibition accorded by common law, Federal law or statutes of this State", and nothing in it may be construed to "deny, abrogate or impair any such common law or statutory right, remedy or prohibition" (§ 56:12-18), so electing the Act's penalty is not a choice against the Consumer Fraud Act.
6 authorities
- statuteN.J. Stat. Ann. § 56:12-16enactment date not established
The words that state the rule
No consumer contract, warranty, notice or sign, as provided for in this act, shall contain any provision by which the consumer waives his rights under this act. Any such provision shall be null and void. No consumer contract, notice or sign shall state that any of its provisions is or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable within the State of New Jersey; provided, however, that this shall not apply to warranties.
- statuteN.J. Stat. Ann. § 56:12-15enactment date not established
The words that state the rule
No seller, lessor, creditor, lender or bailee shall in the course of his business offer to any consumer or prospective consumer or enter into any written consumer contract or give or display any written consumer warranty, notice or sign after the effective date of this act which includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee as established by State or Federal law at the time the offer is made or the consumer contract is signed or the warranty, notice or sign is given or displayed. Consumer means any individual who buys, leases, borrows, or bails any money, property or service which is primarily for personal, family or household purposes. The provisions of this act shall not apply to residential leases or to the sale of real estate, whether improved or not, or to the construction of new homes subject to "The New Home Warranty and Builders' Registration Act," P.L.1977, c. 467 (C. 46:3B-1 et seq.).
- statuteN.J. Stat. Ann. § 56:8-19enactment date not established
The words that state the rule
Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act or the act hereby amended and supplemented may bring an action or assert a counterclaim therefor in any court of competent jurisdiction. In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. In all actions under this section, including those brought by the Attorney General, the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit.
- statuteN.J. Stat. Ann. § 56:12-17enactment date not established
The words that state the rule
Any person who violates the provisions of this act shall be liable to the aggrieved consumer for a civil penalty of not less than $100.00 or for actual damages, or both at the election of the consumer, together with reasonable attorney's fees and court costs. This may be recoverable by the consumer in a civil action in a court of competent jurisdiction or as part of a counterclaim by the consumer against the seller, lessor, creditor, lender or bailee or assignee of any of the aforesaid, who aggrieved him. A consumer also shall have the right to petition the court to terminate a contract which violates the provisions of section 2 of this act and the court in its discretion may void the contract.
- statuteN.J. Stat. Ann. § 56:12-14enactment date not established
The words that state the rule
This act shall be known and may be cited as the "Truth-in-Consumer Contract, Warranty and Notice Act."
- statuteN.J. Stat. Ann. § 56:12-18enactment date not established
The words that state the rule
The rights, remedies and prohibitions accorded by the provisions of this act are hereby declared to be in addition to and cumulative of any other right, remedy or prohibition accorded by common law, Federal law or statutes of this State, and nothing contained herein shall be construed to deny, abrogate or impair any such common law or statutory right, remedy or prohibition.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.