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Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

Definitions and interpretation

1(1)In this Act

“business” includes a profession and the activities of(activité commerciale)

(a) a government department or agency;

(b) a local government or local government agency; and

(c) Repealed: 2017, c.20, s.41

(d) a Crown corporation;

“buyer” means a person who is supplied under a contract for the sale or supply of a consumer product;(acheteur)

“consumer loss” means(préjudice de consommation)

(a) a loss that a person does not suffer in a business capacity; or

(b) a loss that a person suffers in a business capacity to the extent that it consists of liability that he or another person incurs for a loss that is not suffered in a business capacity;

“consumer product” means any tangible personal property, new or used, of a kind that is commonly used for personal, family or household purposes;(produit de consommation)

“contract” means a contract for the sale or supply of a consumer product;(contrat)

“contract for the sale or supply of a consumer product” means(contrat de vente ou de fourniture de produits de consommation)

(a) a contract of sale of a consumer product, including a conditional sale agreement;

(b) a contract of barter or exchange of a consumer product;

(c) a contract of lease or hire of a consumer product, whether or not there is an option to purchase it; or

(d) a contract for services or for labour and materials if a consumer product is supplied along with the services or labour;

“distributor” means a person who supplies consumer products as part of his regular business and, without limiting the generality of the foregoing, includes a producer, processor, manufacturer, importer, wholesaler, retailer or dealer;(distributeur)

“loss” means loss or damage of any kind, including economic loss, damage to property and personal injury;(préjudice)

“product” means any consumer product supplied under a contract;(produit)

“seller” means the person who is the supplier under a contract for the sale or supply of a consumer product;(vendeur)

“warranty” means a term of the contract that is a promise.(garantie)

1(2)A buyer does not make a contract in the course of a business within the meaning of this Act if the contract is for the sale or supply of a product that he acquires primarily for use for personal, family or household purposes, notwithstanding that he also acquires the product for use in a business.

2005, c.7, s.15; 2017, c.20, s.41

Administration

2013, c.31, s.9

1.1The Financial and Consumer Services Commission is responsible for the administration of this Act.

2013, c.31, s.9

APPLICATION OF ACT

Act applies to every sale or supply-savings

2(1)Subject to subsection (2), this Act applies to every sale or supply of a consumer product.

2(2)This Act does not apply to the sale or supply of a consumer product by a seller or supplier

(a) who is not a distributor of consumer products of that kind and does not hold himself out as such; or

(b) who is acting as a trustee in bankruptcy, receiver, liquidator or sheriff, or who is acting under an order of a court.

2(3)This Act applies notwithstanding any agreement, notice, disclaimer, waiver, acknowledgement or other thing to the contrary.

2(4)If there is a conflict between this Act and any other Act, this Act prevails.

2(5)The Crown in right of the Province and in every other right is bound by this Act.

Indemnification rights of distributor against non-distributor

3Notwithstanding any agreement to the contrary, a person who incurs any liability in relation to a consumer product, other than liability under section 8 of this Act, cannot recover indemnification or damages in respect of that liability from or against any seller or supplier of that consumer product who is not a distributor of consumer products of that kind and does not hold himself out as such, unless he incurs the liability because of that person’s fraud.

EXPRESS WARRANTIES

Express warranties made by seller

4(1)In every contract for the sale or supply of a consumer product the following statements are express warranties given by the seller to the buyer:

(a) any oral statement in relation to the product that the seller makes to the buyer, unless the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller’s statement;

(b) any written statement in relation to the product that the seller makes to the buyer, whether or not the buyer relies on the statement, unless the circumstances show that it would be unreasonable for him to rely on the statement; and

(c) any statement in relation to the product, however made, that the seller makes to the public or a portion thereof, whether or not the buyer relies on the statement, unless the circumstances show that it would be unreasonable for the buyer to rely on the statement.

4(2)The seller shall be deemed to have made any statement

(a) made by his agent or employee, unless he proves that the agent or employee was not acting within the scope of his actual, usual or apparent authority; or

(b) made in writing on the product or its container or in a label, tag, sign or document attached to, in close proximity to, or accompanying the product, unless he proves that the statement was made by another person who was not a distributor of the product and that he neither knew nor ought to have known that the statement was made.

4(3)Where a statement was made in a manner or circumstances that it appears that the statement was made by the seller, it shall be presumed that the statement was made by the seller unless he proves that it was not his statement.

4(4)In this section

(a) “makes” includes causes to be made;

(b) “statement” means a promise or representation of fact or intention that is made before or at the time of the contract.

1980, c.12, s.1

Parol evidence rule abolished

5Where there is a written contract, oral and other extrinsic evidence is admissible in any court to establish an express warranty notwithstanding that it adds to, varies or contradicts the written contract.

Form of warranty immaterial

6Any express warranty given by the seller to the buyer to repair, replace, make a refund or do anything else if the product is defective, breaks down, malfunctions or fails to meet his specifications shall be deemed to include an express warranty that the product is not defective or will not break down, malfunction or fail to meet his specifications, as the case may be, during the term of the express warranty.

1980, c.12, s.2

Express warranty not to affect implied warranty

7An express warranty does not exclude or restrict an implied warranty provided by this Act.

IMPLIED WARRANTIES

Implied warranties as to title, etc

8(1)In every contract for the sale or supply of a consumer product, other than one to which subsection (2) applies, there is an implied warranty given by the seller to the buyer

(a) that the seller has a right to sell the product, or will have a right to sell the product at the time of its delivery to the buyer;

(b) that the product is free, or will be free at the time of its delivery to the buyer, and will remain free from any interest, lien, charge or encumbrance not actually known to the buyer before the contract is made; and

(c) that the buyer will enjoy quiet possession of the product except so far as it may be disturbed by any person entitled to any interest, lien, charge or encumbrance actually known to the buyer before the contract is made.

8(2)Where there is a contract of lease or hire of a consumer product and there is not an option to purchase it, there is an implied warranty given by the seller to the buyer

(a) that the seller has a right to supply the product, or will have a right to supply the product at the time of its delivery to the buyer; and

(b) that the buyer will enjoy quiet possession of the product except so far as it may be disturbed by any person entitled to any interest, lien, charge or encumbrance actually known to the buyer before the contract is made.

Implied warranty that product is unused

9(1)In every contract for the sale or supply of a consumer product there is an implied warranty given by the seller to the buyer that the product is unused, unless before the contract is made

(a) the seller discloses to the buyer that the product is not unused; or

(b) the buyer knows or ought to know that the product is not unused or is likely not to be unused.

9(2)For the purposes of this section, a product is unused notwithstanding that it has been used by the seller or any other person to test, service, prepare or deliver it, if it has not been so used to an unreasonable extent.

1980, c.12, s.3

Implied warranty as to quality

10(1)Subject to subsection (2), in every contract for the sale or supply of a consumer product there is an implied warranty given by the seller to the buyer

(a) that the product is of such quality, in such state or condition, and as fit for the purpose or purposes for which products of that kind are normally used as it is reasonable to expect having regard to the seller’s description of the product, if any, the price, when relevant, and all other relevant circumstances; and

(b) that the product complies with all mandatory federal and provincial standards in relation to health, safety and quality.

10(2)There is no implied warranty under paragraph (1)(a)

(a) as regards any defect that is known to the buyer before the contract is made;

(b) as regards any defect that the seller has reason to believe exists and that he discloses to the buyer before the contract is made;

(c) if the product is a used product and the buyer examines it before the contract is made, as regards any defect that that examination ought to reveal; or

(d) if there is a sale or supply by sample, as regards any defect that a reasonable examination of the sample ought to reveal.

Implied warranty as to fitness

11Where before the contract is made the buyer expressly or by implication makes known to the seller any particular purpose for which the product is to be used, there is an implied warranty given by the seller to the buyer that the product is reasonably fit for that purpose, whether or not that is a purpose for which such a product is normally used, unless the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller’s skill or judgment.

Implied warranty as to durability

12(1)In every contract for the sale or supply of a consumer product there is an implied warranty given by the seller to the buyer that the product and any components thereof will be durable for a reasonable period of time.

12(2)In determining a reasonable period of time for the purposes of subsection (1), regard shall be had to all relevant circumstances, including the nature of the product, whether it was new or used, its use as contemplated by the seller and buyer at the time of the contract, its actual use and whether it was properly maintained.

REMEDIES FOR BREACH OF
WARRANTIES

Application of remedies provisions

13Where

(a) there is a contract for the sale or supply of a consumer product and the buyer makes or holds himself out as making the contract in the course of a business; or

(b) there is a contract for services or for labour and materials and a consumer product is supplied along with the services or labour;

the remedies in sections 14 to 22 for breach of a warranty provided by this Act do not apply, but the remedies that would normally be available under the law for breach of the warranty shall be deemed to be remedies provided by this Act.

Seller’s right to rectify breach

14(1)Where the seller is in breach of a warranty provided by this Act, the buyer shall give him a reasonable opportunity to rectify the breach, unless

(a) the buyer is unable to do so, or is unable to do so without significant inconvenience; or

(b) the breach is a major breach.

14(2)Subject to subsection (3), where the seller has a right to rectify the breach pursuant to subsection (1) and requests the buyer to return the product, the buyer shall return the product to the seller or to any repair facility or service outlet that is operated or authorized by the seller, and the seller shall return the product to the buyer after he rectifies the breach, or may supply a replacement if he is entitled by law to do so.

14(3)The buyer is not bound to return the product if it cannot be returned without significant inconvenience to him because of its size, weight, method of attachment or installation, or because of the nature of the breach.

14(4)The seller is liable for all reasonable expenses that the buyer incurs under subsection (2).

Buyer’s right to damages

15Where the seller is in breach of a warranty provided by this Act, the buyer may recover damages for any loss that he has suffered because of the breach and that was reasonably foreseeable at the time of the contract as liable to result from the breach.

Buyer’s right to reject

16(1)Where the seller is in breach of a warranty provided by this Act and does not rectify the breach pursuant to any opportunity that the buyer gives him under section 14 or otherwise, the buyer may reject the product if he does so within a reasonable time after he discovers the breach and he discovers the breach not later than sixty days after delivery of the product.

16(2)Notwithstanding that the buyer discovers the breach later than sixty days after delivery of the product, where the breach is a major breach the buyer may reject the product if he does so within a reasonable time after he ought to have discovered the breach.

16(3)The buyer’s rejection is not effective until the seller knows or ought to know that the buyer does not accept the product.

Rights upon rejection

17(1)Subject to subsections (2) and (3), where the buyer rejects the product pursuant to section 16, he is released from his obligations under the contract and may recover from the seller any payments that he has made on the price and damages for any other loss that he has suffered because of the breach and that was reasonably foreseeable at the time of the contract as liable to result from the breach.

17(2)The seller may deduct from the refund of any payments on the price or recover from the buyer, or both, an amount that is equitable in the circumstances for the benefit, if any, that the buyer derived from use of the product.

17(3)Where before rejection the product has deteriorated to a state beyond that attributable to reasonable wear and tear for the period of time that the product was used by the buyer, or has been damaged by causes that are not attributable to the seller’s breach, the seller may deduct from the refund of any payments on the price or recover from the buyer, or both, an amount for compensation for the difference between the value of the product as it is and the value that it would have but for that deterioration or damage.

1980, c.12, s.4

Buyer’s right to lien

18(1)Where the buyer rejects the product pursuant to section 16, he is entitled to retain possession of the product until the seller refunds all payments that have been made on the price or complies with subsection (2) or (3).

18(2)Where the seller claims a right under subsection 17(2) or (3) to deduct an amount from a refund of payments on the price, and the buyer does not dispute his claim in whole or in part, the seller may deduct that amount and pay the balance to the buyer.

18(3)Where the seller claims a right under subsection 17(2) or (3) to deduct an amount from a refund of payments on the price, and the buyer disputes his claim in whole or in part, the seller may

(a) deduct any amount that is not in dispute,

(b) deposit the amount in dispute with a court and give the receipt for the deposit or a copy thereof to the buyer, and

(c) pay the balance to the buyer.

18(4)Where the seller deposits money under subsection (3) and brings an action to realize his claim within fifteen days after making the deposit, the money shall be paid out at the direction of the judge of the court in which the action is brought.

18(5)Where the seller deposits money under subsection (3) and does not bring an action to realize his claim within fifteen days after making the deposit, the money shall be paid out to the buyer.

18(6)In this section “court” means a court in which an action referred to in subsection (4) may be brought.

Payments on price, consideration other than money

19(1)For the purposes of sections 17 and 18, payments on the price shall be deemed to include

(a) any finance charges or other credit costs that the buyer has reasonably incurred in relation to the product, whether paid to the seller or to another person; and

(b) any consideration that the buyer gives to the seller, whether or not it is money.

19(2)Where the buyer gives consideration other than money, in whole or in part, the seller or the buyer may elect to treat it as if it were money, the amount of which shall be deemed to be the monetary value of such consideration at the time it was given.

Where buyer has granted security interest

20(1)The buyer may reject the product under section 16 notwithstanding that the buyer has granted a security interest in the product to a third person, unless the amount outstanding on the security agreement exceeds any amount that the buyer is entitled to recover from the seller under section 17.

20(2)Where the buyer has granted a security interest in the product to a third person, the seller may exercise the buyer’s rights under section 23 of the Cost of Credit Disclosure and Payday Loans Act on behalf of the buyer.

20(3)The buyer is liable to the seller for any payments, except finance charges, that the seller makes under subsection (2) and the seller may treat such payments as a refund of payments to the buyer for the purposes of sections 17 and 18.

1980, c.12, s.5; 2002, c.C-28.3, s.66; 2008, c.3, s.2

Buyer’s duty to give back product free from claims

21(1)Where the buyer cannot give back the product to the seller free from any right, other than a security interest, against it in favour of a third person, the buyer cannot reject the product under section 16.

21(2)Subsection (1) does not apply

(a) where the third person’s right against the product existed prior to the supply of the product by the seller and was not attributable to anything the buyer did or failed to do; or

(b) where the third person is claiming from or under the seller.

1980, c.12, s.6

Return of rejected product

22(1)Subject to section 18, where the buyer rejects the product pursuant to section 16 he shall allow the seller to take it back.

22(2)Subject to section 18, if the seller requests the buyer to return the product, the buyer shall return it to the seller or to any repair facility or service outlet that is operated or authorized by the seller, unless it cannot be returned without significant inconvenience to him because of its size, weight, method of attachment or installation, or because of the nature of the breach.

22(3)The seller is liable for all reasonable expenses that the buyer incurs under subsection (2).

22(4)The buyer shall take reasonable care of the product until he complies with subsection (1) or (2).

REMEDIES WHERE NO PRIVITY
OF CONTRACT

Privity of contract not required

23Where the seller is in breach of a warranty provided by this Act, any person who is not a party to the contract but who suffers a consumer loss because of the breach may recover damages against the seller for the loss if it was reasonably foreseeable at the time of the contract as liable to result from the breach.

EXCLUSION OF WARRANTIES
OR REMEDIES

No exclusion of warranties or remedies

24Where there is a contract for the sale or supply of a consumer product, the parties cannot agree to exclude or restrict any warranty or remedy provided by this Act except as provided in sections 25 and 26.

Exclusion or restriction of remedies for breach of express warranty

25(1)Subject to subsection (4), where there is a contract for the sale or supply of a consumer product, the parties may agree to exclude or restrict any remedy provided by this Act for breach of an express warranty, but such agreement shall be ineffective to the extent that it is shown that it would not be fair or reasonable to allow reliance on such agreement.

25(2)Where the person alleging that an agreement referred to in subsection (1) is ineffective was himself unable to rely on a similar agreement made between him and another person in relation to the product because it was not fair or reasonable for him to rely on that agreement, then unless reliance on the agreement referred to in subsection (1) is shown to be fair and reasonable in the circumstances, that agreement is ineffective to the same extent that the similar agreement was ineffective.

25(3)In determining whether it would be fair or reasonable to allow reliance on an agreement to exclude or restrict any remedy provided by this Act for breach of an express warranty, regard shall be had to all the circumstances of the case.

25(4)Where there is a contract for the sale or supply of a consumer product by description, the parties cannot agree to exclude or restrict any remedy provided by this Act for breach of an express warranty that forms part of the description of the product.

25(5)For the purposes of subsection (4), a sale or supply of a consumer product shall not be prevented from being a sale or supply by description by reason only that the product is a specific product that is seen, examined, tested or selected by the buyer.

25(6)The right of any person claiming under section 23 is limited to the extent of any exclusion or restriction of remedy that the parties agreed to in the contract and that is effective under this section.

Exclusion of warranties or remedies in business contracts

26Where there is a contract for the sale or supply of a consumer product and the buyer makes or holds himself out as making the contract in the course of a business, the parties may agree to exclude or restrict any warranty or remedy provided by this Act but, except to the extent allowed by section 25, such agreement shall be ineffective with respect to any consumer loss for which the seller would be liable if no such agreement had been made.

PRODUCT LIABILITY

Liability for dangerously defective products

27(1)A supplier of a consumer product that is unreasonably dangerous to person or property because of a defect in design, materials or workmanship is liable to any person who suffers a consumer loss in the Province because of the defect, if the loss was reasonably foreseeable at the time of the supply as liable to result from the defect and

(a) the supplier has supplied the consumer product in the Province;

(b) the supplier has supplied the consumer product outside the Province but has done something in the Province that contributes to the consumer loss suffered in the Province;

(c) the supplier has supplied the consumer product outside the Province but the defect arose in whole or in part because of the supplier’s failure to comply with any mandatory federal standards in relation to health or safety, or the defect caused the consumer product to fail to comply with any such standards; or

(d) the supplier has supplied the consumer product outside the Province but at the time of the supply it was reasonably foreseeable that the product would be used or consumed in the Province.

27(2)For the purposes of paragraph (1)(b), where a person has done anything in the Province to further the supply of any consumer product that is similar in kind to the consumer product that caused the loss, it shall be presumed that he has done something in the Province that contributed to the consumer loss suffered in the Province, unless he proves irrefragably that what he did in the Province did not in any way contribute to that loss.

27(3)A person is not liable under this section

(a) for any loss that is caused by a defect that is not present in the consumer product at the time he supplies it; or

(b) for any loss that is caused by a defect that he has reason to believe exists and that he discloses to the person to whom he supplies the consumer product before the loss is suffered, if the defect does not arise in whole or in part because of his failure to comply with any mandatory federal or provincial standards in relation to health or safety and the defect does not cause the consumer product to fail to comply with any such standards.

27(4)The liability of a person under this section does not depend on any contract or negligence.

2007, c.8, s.1

ACT NOT SELF-CONTAINED CODE

Rights and remedies to be in addition-savings

28The rights and remedies provided in this Act are in addition to any other rights or remedies under any other law in force in the Province, unless a right or remedy under such law is expressly or impliedly contradicted by this Act.

Commencement

29This Act or any provision thereof comes into force on a day to be fixed by proclamation.

N.B. Sections 1-5 and 7-28 of this Act were proclaimed and came into force January 1, 1980.

N.B. Section 6 of this Act was proclaimed and came into force January 1, 1981.

N.B. This Act is consolidated to January 1, 2018.

C-18.1 - Consumer Product Warranty and Liability Act

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