The complicated case of buyer beware
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AbstractKeeping in mind consumer contracts, any waivers of responsibility that the commercial party wants to rely upon must be accepted by the consumer at the time of the contract. If the waiver is never discussed and is not signed at the making of the contract, it is not a term which the consumer has accepted. If the parking lot or ski hill operator comes along later and asks the waiver to be signed, this will usually constitute a new contract. The consumer is giving up some value at that time (the promise to not sue the operator), but what is the operator giving up by way of fresh consideration? An absence of consideration also renders the contract unenforceable. This explains why signage or waiver provisions (e.g. "the operator shall not be responsible for personal injury or property damage, however caused") are found at the entrances to the parking lot and ski resort or may be mentioned at the time the ticket is purchased. The range of consumer protection regulation in Canada (passed by the two levels of government to supplement the common law) is very broad. It includes legislation, regulations, and guidelines. Both the federal government and most provincial governments, such as Alberta, have a comprehensive statute. Actions which are specifically prohibited by the federal statute, the Competition Act, can be divided into two categories; prohibited activities among commercial parties (usually specified unlawful distribution practices) and between commercial party and individual consumer. Attempts to influence price maintenance, refusing to sell or supply to certain businesses, bid rigging, conspiring, discriminatory and predatory pricing are in the first category. Making untrue, deceptive or misleading statements, making representations of quality without performing an adequate test to support that claim, and regular price claims are examples of regulated activity in the second category. In the aftermath of widespread consumer protest over the negative-option sales strategy used to sell the new cable television packages, several provincial governments promised legislative action to ban such methods. This was the immediate political response even if existing provisions prohibiting unfair trade practices of the general consumer protection legislation already covered the practice. The only province to actually follow through, however, was British Columbia. Retroactive to January 26, 1995, contracts entered into for unsolicited services sold by negative-option marketing in British Columbia are now unenforceable, unless the buyer explicitly consents. Thus British Columbia joined Quebec and Nova Scotia which had already specifically prohibited the negative-option sale since 1992 and 1994, respectively.
Article deposited after permission was granted by the editor of LawNow magazine, 06/28/2010.