Legal Guide

This page was last modified on August 9, 2000. There are no plans to update it further.

This website was created by Karl Dore, the principal architect of the Consumer Product Warranty and Liability Act. It is intended to provide information on the legislation, not to give or offer individual legal advice. For further assistance contact New Brunswick's Consumer Affairs Branch or one of the Rentalsman Offices.

This page was last modified on August 9, 2000.

Table of Contents

Table of Contents for scope/coverage of legislation, express warranties, implied warranties, privity & products liability, remedies and waivers; and links to full text of legislation, cases (indexed by name, section of Act considered, product, judge & date), law review articles, background law reform reports, and top 10 list.

Top 10 List

Scope/Coverage of the Legislation

• Introduction

• 1. The kinds of goods

• • CPWALA text
  • Cases
  • Focus on product, not buyer
  • Question of fact
  • Examples of things found to be consumer products
  • Things found not to be consumer products
  • Judicial comments re consumer products
  • Troublesome cases

• 2. The kinds of sellers and suppliers

• • CPWALA text
  • Cases
  • Distributor of the kind of consumer product supplied
  • Onus of proof
  • Some cases
  • Application to professionals
  • Application to government & its agencies
  • Exemptions from CPWALA
    • Private sellers also protected against indemnification claims
    • Private sellers not protected for title defects or fraud

• 3. The kinds of persons protected

• • CPWALA applies in favour all buyers
  • Protection to buyers who have no privity of contract with manufacturer or other distributor
  • Protection to person who have no privity of contract with anyone -- donees, users and bystanders
  • Supplier's own rights against other distributors

• 4. The kinds of transactions

• • CPWALA text
  • Cases
  • Contracts involving both consumer product and labours/service
    • Section 5 may apply to entire contract
    • A consumer product must be supplied
    • Where a consumer product is incorporated into another product
      • Case law
      • Policy
  • Defective products posing safety hazards to person or property
  • Strict product liability

• 5. CPWALA prevails over everything

• • CPWALA text
  • Cases
  • Consumer buyers
  • Business buyers

• 6. CPWALA not a complete code

• • CPWALA text
  • Cases

Express Warranties

• Suppliers' Responsibilities (Guarantees/Warranties)
  • Terminology

• Express Warranties

• • Substantial changes made
  • Rationale for changes
  • CPWALA text
  • Cases

• Reasonable reliance test

• • Oral statements
  • Written statements & advertised statements
  • Express warranties include
  • Express warranties do not include
  • Burden of proof re materiality & reliance
  • Opinions
    • Opinion as fact
    • Opinion regarding suitability of goods for buyer's purpose

• Parol evidence rule abolished
  • Case law

• Salesperson's statements
  • Cases

• Statements on signs, labels, packaging, etc.

• Where statement appears to be supplier's

Implied Warranties

• Introduction

• Purpose and nature of implied warranties

• TITLE

• • CPWALA text
  • Minor changes
  • Simple leases

• QUALITY & FITNESS

• • Safety standards
  • Goods unused
  • Satisfactory quality
    • CPWALA text
    • Cases
    • Expectations vary with circumstances
    • Rogers v. Parish (Scarborough) Ltd.
    • Goods must meet safety standards
    • Relevance of SGA's "merchantability"
    • Durability requirements
    • Defects not covered by section 10 warranty
      • Case law
      • Case comment
  • Contracting out
    • CPWALA text
    • Rationale for ban against contracting out
    • Difference between "contracting out" and "reducing expectation"
    • "As is" Sales Under CPWALA
      • Case law on contracting out and "as is"
      • Case comment

• FITNESS FOR NORMAL PURPOSE & FITNESS FOR SPECIAL PURPOSE

• • CPWALA text
  • Cases
  • Similarities to Section 15(a) of SGA
  • Section 11 requirements
  • Onus of proof
  • "Particular" purpose includes any known purpose
  • Single-purpose goods
  • Multi-purpose goods
  • Reliance readily inferred
  • Durability requirements
  • Case law
  • Sections 10 and 11 coverage compared
  • Strict liability

• DURABILITY

• • CPWALA text
  • Cases
  • Multi-component goods
  • Section 12 adds to sections 10 & 11
  • Onus of proof
  • Leases
  • Notes on some cases

Privity & Products Liability

• PROTECTION FOR PERSONS NOT PRIVY TO CONTRACT
  • Introduction
  • CPWALA text
  • Cases
  • Vertical privity rules
    • Consumer buyer's rights under section 23
  • Horizontal privity rules
    • Subsequent buyers, donees, users & bystanders
  • Business buyer's rights under section 23
  • Business buyer's indemnification rights for liability incurred for consumer loss
  • Where a consumer product is incorporated into some other thing
    • Where a consumer product is incorporated into another consumer product, e.g. wax applied to a car
    • Case law
    • Where a consumer product is incorporated into a non-consumer product, e.g. paint applied to a house
  • Section 23 rights/remedies are limited
    • Damages only
  • Section 23 and contracting out
    • Business buyers
  • Case law
• DANGEROUSLY DEFECTIVE GOODS
  • Introduction
  • CPWALA text
  • Cases
  • When section 27 is not necessary
  • When section 27 is necessary
  • The suppliers responsible
  • Persons protected
  • Case law

Remedies

• Application

• • Special remedies for consumers
  • Normal remedies for business buyers
    • CPWALA text
    • Who are business buyers?
    • "Business" includes professions & government
  • Part business & part personal
  • Normal remedies for services/labour contracts

• The general approach

• Seller's opportunity to cure

• • CPWALA text
  • Cases
  • General rule -- buyer must give seller opportunity to cure
  • Exceptions
    • Onus of proof re exceptions
    • Major breach
    • Non-major breach
    • Returning goods for repair
    • Repair by someone else

• Damages

• • CPWALA text
  • Cases
  • Causation & mitigation
  • Foreseeability
  • Examples of other consequential losses

• Rejection rights

• • Law Reform Report recommendations & rationale
  • Recommendations adopted in CPWALA
  • When rejection remedy available
  • Time limits
  • Return of goods
  • CPWALA text
  • Cases
  • Consumer's rights upon rejection
  • Supplier's rights upon rejection
  • Consumer can retain possession until refund
    • Disputes over amount of refund
    • Consumer's duty to take care of goods
    • CPWALA text
    • Cases

Waivers/ Disclaimers/Contracting Out

• General approach to waivers
  • CPWALA text
  • Cases
• Consumer buyers
  • What seller cannot do
  • What seller can do
  • Effect of ban against waiver of express warranties
  • Parol evidence rule abolished
  • Effect of ban against waiver of implied warranties
  • Remedies for breach of express warranties
    • Attempts to exclude all remedies
    • Sale by description
      • Clarification re "specific" goods and self-service stores
      • Attempts to avoid fairness & reasonableness control
        • Section 6
        • Rationale for section 6
• Business buyers
  • General rule
  • Major exception
    • Exception to exception
    • Who are business buyers?
      • "Business" includes professions & government
      • Part business & part personal
    • Case law

• Text of Consumer Product Warranty and Liability Act

• Tables of Cases (indexed by name, section, product, judge, date)

• Law Review Articles

• Law Reform Reports