Consumer sales practices

WARM SPRINGS TRIBAL CODE
CHAPTER 741
CONSUMER SALES PRACTICES

Table of Contents

I. GENERAL
741.010 Legislative History
741.020 Jurisdiction
741.030 Scope
741.020 Definitions

II. DECEPTIVE CONSUMER SALES PRACTICES
741.100 Unfair or Deceptive Consumer Sales Practices Prohibited

III. UNCONSCIONABLE CONSUMER SALES PRACTICES
741.200 Unconscionable Consumer Sales Practices Prohibited

IV. REMEDIES
741.300 Action by Tribe
741.310 Action by Consumer

WARM SPRINGS TRIBAL CODE
CHAPTER 741
CONSUMER SALES PRACTICES

I. GENERAL

741.010 Legislative History. This Chapter is adopted as part of a larger effort by the Confederated Tribes of the Warm Springs Reservation to establish a Warm Springs Commercial Code for the purpose of supporting and encouraging economic development activities on the Reservation, promoting the development of tribal member-owned businesses, and facilitating tribal member access to essential services such as housing and banking. The purpose of this Chapter is to provide protection and a legal remedy to consumers for unconscionable, deceptive or otherwise unlawful sales practices.

741.020 Jurisdiction. The Warm Springs Tribal Court has jurisdiction over cases arising under this Chapter. The Warm Springs Tribal Court shall have jurisdiction over any person or legal entity who enters into a consumer transaction on the Reservation, or who brings an action in Warm Springs Tribal Court to enforce rights arising from a consumer transaction entered off the Reservation.

741.30 Scope.

The provisions of this Chapter apply to the following consumer transactions:

1. Consumer transactions entered into on the Warm Springs Reservation of Oregon (“Reservation”). A consumer transaction is entered into on the Reservation if: (a) the consumer transaction takes place on the Reservation; (b) the contract, agreement or other writing evidencing the consumer transaction is signed by one of the parties on the Reservation; or (c) the goods that are the subject of the transaction are delivered by the supplier or its authorized agent on the Reservation.
2. Any consumer transaction entered into with a resident of the Reservation, but not entered into on the Reservation, when the supplier brings an action in Warm Springs Tribal Court to enforce rights arising from the consumer transaction.

741.20 Definitions. As used in this Chapter:

1. “Consumer transaction” means a sale, lease, assignment or other transfer of an item of goods, a service, or an intangible, to a consumer for purposes that are primarily personal, family or household, or solicitation to supply any of these things.
2. “Supplier” means a seller, lessor, assignor, or other person engaged in the business of effecting or soliciting consumer transactions, whether or not the person deals directly with the consumer.
3. “Consumer” means a natural person who is the buyer, lessee, assignee or other transferee of a good, service or intangible for primarily personal, family or household use.
4. “Knowledge” means actual awareness, but such actual awareness may be inferred where objective manifestations indicate that the individual involved acted with such awareness.

II. DECEPTIVE CONSUMER SALES PRACTICES

741.100 Unfair or Deceptive Consumer Sales Practices Prohibited.

1. No supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction. Such an unfair or deceptive act or practice by a supplier violates this section whether it occurs before, during, or after the transaction.
2. Without limiting the scope of subsection (1) of this section, the act or practice of a supplier in representing any of the following is deceptive: (a) That the subject of a consumer transaction has sponsorship, approval, performance characteristics, accessories, uses, or benefits that it does not have; (b) That the subject of a consumer transaction is of a particular standard, quality, grade, style, prescription, or model, if it is not; (c) That the subject of a consumer transaction is new, or unused, if it is not; (d) That the subject of a consumer transaction is available to the consumer for a reason that does not exist; (e) That the subject of a consumer transaction has been supplied in accordance with a previous representation, if it has not, except that the act of a supplier in furnishing similar merchandise of equal or greater value as a good faith substitute does not violate this section; (f) That the subject of a consumer transaction will be supplied in greater quantity than the supplier intends; (g) That replacement or repair of a good is needed, if it is not; (h) That a specific price advantage exists, if it does not; (i) That the supplier has a sponsorship, approval, or affiliation that the supplier does not have; and (j) That a consumer transaction involves or does not involve a warranty, a disclaimer of warranties or other rights, remedies, or obligations if the representation is false.

III. UNCONSCIONABLE CONSUMER SALES PRACTICES

741.200 Unconscionable Consumer Sales Practices Prohibited.

1. No supplier shall commit an unconscionable act or practice in connection with a consumer transaction. Such an unconscionable act or practice by a supplier violates this section whether it occurs before, during, or after the transaction.
2. In determining whether an act or practice is unconscionable, the following circumstances shall be taken into consideration:(a) Whether the supplier has knowingly taken advantage of the inability of the consumer reasonably to protect his interests because of his physical or mental infirmities, ignorance, illiteracy, or inability to understand the language of an agreement; (b) Whether the supplier knew at the time the consumer transaction was entered into that the price was substantially in excess of the price at which similar property or services were readily obtainable in similar consumer transactions by like consumers; (c) Whether the supplier knew at the time the consumer transaction was entered into of the inability of the consumer to receive a substantial benefit from the subject of the consumer transaction; (d) Whether the supplier knew at the time the consumer transaction was entered into that there was no reasonable probability of payment of the obligation in full by the consumer; (e) Whether the supplier required the consumer to enter into a consumer transaction on terms the supplier knew were substantially one-sided in favor of the supplier; (f) Whether the supplier knowingly made a misleading statement of opinion on which the consumer was likely to rely to his detriment; and (g) Whether the supplier has, without justification, refused to make a refund in cash or by check for a returned item that was purchased with cash or by check, unless the supplier had conspicuously posted in the establishment at the time of the sale a sign stating the supplier’s refund policy.

IV. REMEDIES

741.300 Action by Tribe.

1. The Tribal Prosecutor may bring suit in the name of the Confederated Tribes of the Warm Springs Reservation of Oregon in Warm Springs Tribal Court against a supplier when he has probable cause to believe that a supplier is engaging in, has engaged in, or is about to engage in an activity made unlawful by this Chapter to restrain the supplier from engaging in the alleged unlawful practice.
2. In any case brought by the Tribal Prosecutor under subsection (1) of this section, the court may make such additional orders or judgments as may be necessary: (a) to restore to any consumer any moneys or property, real or personal, of which the consumer was deprived by means the unlawful practice; and (b) to insure cessation of the unlawful practices.

741.310 Action by Consumer.

1. Any consumer may seek a declaratory judgment, an injunction or other appropriate equitable relief against a supplier for any practice made unlawful by this Chapter.
2. Any consumer who suffers any loss of money or property, real or personal, as a result of any practice by a supplier made unlawful by this Chapter may bring an action in Tribal Court to recover actual damages or $200, whichever is greater. The court or the jury, as the case may be, may award punitive damages and the court may provide the equitable relief the court considers necessary or proper.
3. Actions brought under this section shall be commenced within one year from the discovery of the unlawful practice.
4. Any money damages to which a consumer is entitled pursuant to this Chapter may be set off by against any obligation of the consumer to the supplier pursuant to the subject consumer transaction, and may be raised as a defense to any lawsuit in federal, state or tribal court, or any other legal proceeding, brought against the consumer by the supplier to enforce rights arising from the subject consumer transaction, without regard to the time limitations prescribed by subsection (3) of this section.