Can a Utah consumer contract make the consumer waive the Consumer Sales Practices Act?
No, and including the waiver is itself a violation. A supplier that engages in a deceptive act or practice in connection with a consumer transaction violates the Utah Consumer Sales Practices Act, and a supplier commits a deceptive act or practice if it includes in any contract, receipt or other written documentation of a consumer transaction, or any addendum, any confession of judgment or any waiver of any of the rights to which a consumer is entitled under the Act (§ 13-11-4). A 'consumer transaction' is a sale, lease, assignment or other transfer of goods, services or other property (except securities and insurance) to a person for primarily personal, family or household purposes, and certain business-opportunity purchases; it also takes in an offer, a solicitation, an agreement or performance of an agreement with respect to such a transfer, and a charitable solicitation. A supplier is a seller, lessor, assignor, offeror, broker or other person who regularly solicits, engages in or enforces consumer transactions, whether or not that person deals directly with the consumer (§ 13-11-3). Separately, under the Assistive Technology Warranty Act, any waiver by a consumer of rights under that chapter is void (§ 70A-2-807).
The trap
The drafting risk is not just an unenforceable clause: putting a UCSPA waiver or a confession of judgment into consumer paperwork is itself a listed deceptive act under § 13-11-4 (the Act's remedy sections were not read for this rule). The text read contains no intent element for this listed act. It protects only rights 'under this chapter'; whether a particular clause (for example an arbitration or limitation clause) is a waiver of the rights the Act protects was not researched. Two savings sit at the end of the chapter and both change who can be sued. “This chapter shall not be construed as imposing any liability on an authorized dealer or lessor or as creating a cause of action by a consumer against a dealer or lessor, except regarding any express warranties made by the dealer or lessor apart from the manufacturer's warranties.” And “Nothing in this chapter shall limit or impair the rights or remedies which are otherwise available to a consumer under any other provision of law.” So the chapter neither manufactures a claim against a dealer or lessor beyond their own express warranties, nor takes away anything a consumer already has under other law.
7 authorities
- statuteUtah Code § 13-11-4enactment date not established
The words that state the rule
A supplier that engages in a deceptive act or practice in connection with a consumer transaction violates this chapter, whether the deceptive act or practice occurs before, during, or after the transaction. Without limiting the scope of Subsection (1) , a supplier commits a deceptive act or practice if the supplier:
- statuteUtah Code § 13-11-4enactment date not established
The words that state the rule
includes in any contract, receipt, or other written documentation of a consumer transaction, or any addendum to any contract, receipt, or other written documentation of a consumer transaction, any confession of judgment or any waiver of any of the rights to which a consumer is entitled under this chapter;
- statuteUtah Code § 70A-2-807enactment date not established
The words that state the rule
Any waiver by a consumer of rights under this chapter is void. A consumer may bring an action in a court with jurisdiction under Title 78A, Judiciary and Judicial Administration, to enforce the consumer's rights under this chapter.
- statuteUtah Code § 70A-2-807enactment date not established
The words that state the rule
This chapter shall not be construed as imposing any liability on an authorized dealer or lessor or as creating a cause of action by a consumer against a dealer or lessor, except regarding any express warranties made by the dealer or lessor apart from the manufacturer's warranties.
- statuteUtah Code § 70A-2-807enactment date not established
The words that state the rule
Nothing in this chapter shall limit or impair the rights or remedies which are otherwise available to a consumer under any other provision of law.
- statuteUtah Code § 13-11-3enactment date not established
The words that state the rule
"Consumer transaction" means a sale, lease, assignment, award by chance, or other written or oral transfer or disposition of goods, services, or other property, both tangible and intangible (except securities and insurance) to, or apparently to, a person for: primarily personal, family, or household purposes; or purposes that relate to a business opportunity that requires: expenditure of money or property by the person described in Subsection (2)(a) ; and the person described in Subsection (2)(a) to perform personal services on a continuing basis and in which the person described in Subsection (2)(a) has not been previously engaged. "Consumer transaction" includes: any of the following with respect to a transfer or disposition described in Subsection (2)(a) : an offer; a solicitation; an agreement; or performance of an agreement; or a charitable solicitation.
- statuteUtah Code § 13-11-3enactment date not established
The words that state the rule
"Supplier" means a seller, lessor, assignor, offeror, broker, or other person who regularly solicits, engages in, or enforces consumer transactions, whether or not the person deals directly with the consumer.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.