business law

Law for New Zealand Business

LAWS541

Consumer Guarantees Act 1993

(Extracts)

2 Interpretation

(1) consumer means a person who—

(a) acquires from a supplier goods or services of a kind ordinarily

acquired for personal, domestic, or household use or consumption; and

(b) does not acquire the goods or services, or hold himself or herself out as acquiring the goods or services, for the purpose of—

(i) resupplying them in trade; or

(ii) consuming them in the course of a process of production or manufacture; or

(iii) in the case of goods, repairing or treating in trade other goods or fixtures on land.

trade means any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supply or acquisition of goods or services.

Part 1

6 Guarantee as to acceptable quality

(1) Subject to section 41, where goods are supplied to a consumer there is a guarantee that the goods are of acceptable quality.

7 Meaning of acceptable quality

(1)  For the purposes of section 6, goods are of acceptable quality if they are as—

(a)  fit for all the purposes for which goods of the type in question are commonly supplied; and

(b) acceptable in appearance and finish; and

(c)  free from minor defects; and

(d)  safe; and

(e)  durable,—

as a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard as acceptable, having regard to—

(f)  the nature of the goods:

(g) the price (where relevant):

(h)  any statements made about the goods on any packaging or label on the goods:

(ha) the nature of the supplier and the context in which the supplier supplies the goods:

(i)  any representation made about the goods by the supplier or the manufacturer:

(j)  all other relevant circumstances of the supply of the goods.

(2)  Where any defects in goods have been specifically drawn to the consumer's attention before he or she agreed to the supply, then notwithstanding that a reasonable consumer may not have regarded the goods as acceptable with those defects, the goods will not fail to comply with the guarantee as to acceptable quality by reason only of those defects.

(3)  Where goods are displayed for sale or hire, the defects that are to be treated as having been specifically drawn to the consumer's attention for the purposes of subsection (2) are those disclosed on a written notice displayed with the goods.

(4)  Goods will not fail to comply with the guarantee of acceptable quality if—

(a)  the goods have been used in a manner, or to an extent which is inconsistent with the manner or extent of use that a reasonable consumer would expect to obtain from the goods; and

(b)  the goods would have complied with the guarantee of acceptable quality if they had not been used in that manner or to that extent.

(5)  A reference in subsections (2) and (3) to a defect means any failure of the goods to comply with the guarantee of acceptable quality.

8 Guarantees as to fitness for particular purpose

(1) Subject to section 41 , the following guarantees apply where goods are supplied to a consumer:

(a)  that the goods are reasonably fit for any particular purpose that the consumer makes known, expressly or by implication, to the supplier as the purpose for which the goods are being acquired by the consumer; and

(b)  that the goods are reasonably fit for any particular purpose for which the supplier represents that they are or will be fit.

(2)  Those guarantees do not apply where the circumstances show that—

(a) the consumer does not rely on the supplier's skill or judgment; or

(b)  it is unreasonable for the consumer to rely on the supplier's skill or judgment.

[…]

9 Guarantee that goods comply with description

(1)  Subject to section 41 , where goods are supplied by description to a

consumer, there is a guarantee that the goods correspond with the description.

(2)  A supply of goods is not prevented from being a supply by description by reason only that, being exposed for sale or hire, they are selected by a consumer.

(3) If the goods are supplied by reference to a sample or demonstration model as well as by description, the guarantees in this section and in section 10 will both apply.

10 Guarantee that goods comply with sample

(1)  Subject to section 41 , the following guarantees apply where goods are supplied to a consumer by reference to a sample or demonstration model:

(a)  that the goods correspond with the sample or demonstration model in quality; and

(b)  that the consumer will have a reasonable opportunity to compare the goods with the sample.

(2) If the goods are supplied by reference to a sample or demonstration model as well as by description, the guarantees in this section and section 9 will both apply.

11 Guarantee as to price

(1) Subject to section 41, where goods are supplied to a consumer there is a guarantee that the consumer is not liable to pay to the supplier more than a reasonable price for the goods in any case where the price for the goods is not—

(a) determined by the contract; nor

(b) left to be determined in a manner agreed by the contract; nor

(c) left to be determined by the course of dealing between the parties.

(2) Where there is a failure to comply with the guarantee in this section, the consumer’s right of redress is to refuse to pay more than a reasonable price.

Part 2 Right of redress against suppliers

Remedies

18 Options against suppliers where goods do not comply with guarantees

(1)  Where a consumer has a right of redress against the supplier in accordance with this Part in respect of the failure of any goods to comply with a guarantee, the consumer may exercise the following remedies.

(2)  Where the failure can be remedied, the consumer may—

(a)  require the supplier to remedy the failure within a reasonable time in accordance with section 19 :

(b) where a supplier who has been required to remedy a failure refuses or neglects to do so, or does not succeed in doing so within a reasonable time,—

(i)  have the failure remedied elsewhere and obtain from the supplier all reasonable costs incurred in having the failure remedied; or

(ii) subject to section 20 , reject the goods in accordance with section 22 .

(3) Where the failure cannot be remedied or is of a substantial character within the meaning of section 21 , the consumer may—

(a) subject to section 20 , reject the goods in accordance with section 22 ; or

(b) obtain from the supplier damages in compensation for any reduction in value of the goods below the price paid or payable by the consumer for the goods.

(4) In addition to the remedies set out in subsection (2) and subsection (3), the consumer may obtain from the supplier damages for any loss or damage to the consumer resulting from the failure (other than loss or damage through reduction in value of the goods) which was reasonably foreseeable as liable to result from the failure.

19 Requirement to remedy

(1) A supplier may comply with a requirement to remedy a failure of any goods to comply with a guarantee—

(a)  by—

(i) repairing the goods (in any case where the failure does not relate to title); or

(ii) curing any defect in title (in any case where the failure relates to title); or

(b)  by replacing the goods with goods of identical type; or

(c)  where the supplier cannot reasonably be expected to repair the goods, by providing a refund of any money paid or other consideration provided by the consumer in respect of the goods.

(2) Where a consumer obtains goods to replace defective goods pursuant to subsection (1), the replacement goods shall, for the purposes of this Act, be deemed to be supplied by the supplier and the guarantees and obligations arising under this Act consequent upon a supply of goods to a consumer shall apply to the replacement goods.

(3) A refund referred to in subsection (1)(c) means a refund in cash of the money paid or the value of any other consideration provided, or both, as the case may require.

21 Failure of substantial character

For the purposes of section 18(3) , a failure to comply with a guarantee is of a substantial character in any case where—

(a)  the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b)  the goods depart in 1 or more significant respects from the description by which they were supplied or, where they were supplied by reference to a sample or demonstration model, from the sample or demonstration model; or

(c)  the goods are substantially unfit for a purpose for which goods of the type in question are commonly supplied or, where section 8(1) applies, the goods are unfit for a particular purpose made known to the supplier or represented by the supplier to be a purpose for which the goods would be fit, and the goods cannot easily and within a reasonable time be remedied to make them fit for such purpose; or

(d)  the goods are not of acceptable quality within the meaning of section 7 because they are unsafe.

23 Consumers' options of refund or replacement

(1) Where the consumer exercises the right to reject goods, the consumer may choose to have either—

(a) a refund of any money paid or other consideration provided by the consumer in respect of the rejected goods; or

(b) goods of the same type and of similar value to replace the rejected goods, where such goods are reasonably available to the supplier as part of the stock of the supplier,—

and the supplier shall make provision accordingly.

(2) A refund referred to in subsection (1)(a) means a refund in cash of the money paid or the value of any other consideration provided, or both, as the case may require.

(3) The obligation to refund cannot be satisfied by permitting the consumer to acquire goods from the supplier.

43 No contracting out except for business transactions

(1)  Subject to this section and to sections 40 , 41 , and 43A , the provisions of this Act shall have effect notwithstanding any provision to the contrary in any agreement.

(2)  However, despite subsection (1), parties to an agreement may include a provision in their agreement to the effect that the provisions of this Act will not apply to that agreement, provided that—

(a)  the agreement is in writing; and

(b)  the goods or services are, or (in connection only with the guarantee of acceptable quality in section 7A ) the gas or electricity is, supplied and acquired in trade; and

(c)  all parties to the agreement—

(i)  are in trade; and

(ii)  agree to contract out of the provisions of this Act; and

(d)  it is fair and reasonable that the parties are bound by the provision in the agreement.