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Bob, a private individual, visits a store in California — where Corp, the manufacturer, maintains a showroom — and proceeds to purchase a consumer goods.

Bob, after explaining his needs relevant to the purchase, is brought the product to the store front from the back, and is prompted to make a credit card payment via an otherwise unique and atypical machine.

Bob is presented a credit card machine that does not include a screen to present any terms, and he is not presented any other written or oral terms by Corp or any of its representatives. Bob pays and Corp delivers. Bob, however, does not receive an a copy of the otherwise existing owner's manual or an express warranty.

The ordinary use, however, has been defined in written statements which entered the bargain in that Bob reviewed and relied on them.

Before day 60 of the purchase, and the first successful use of the product, therein, Bob learns that the product does not fit for the ordinary purposes such products are used and/or for which he specified and therefore gave a reason to Corp. to know Bob's particular although not unordinary purpose to use the consumer goods.

Bob returns, and Corp. refuses to replace or refund.

Corp. refuses to refund or replace the item, and advises Bob that he raise his concerns with the "online sales department", and Corp., therein, informs Bob that his purchase was an online purchase and the retail store does not handle any complaints.


Paragraph (b) of Section 1791 states:

“Buyer” or “retail buyer” means any individual who buys consumer goods from a person engaged in the business of manufacturing, distributing, or selling consumer goods at retail. As used in this subdivision, “person” means any individual, partnership, corporation, limited liability company, association, or other legal entity that engages in any of these businesses. (emphasis added)

I have been looking for the relevant authority to define "at retail" for a while, but I could not find a statute that I am sure is relevant here.

I found Sales and Use Tax Law § 6007. (a)(1)A defining that:

"[R]etail sale" or "sale at retail" means a sale for a purpose other than resale in the regular course of business in the form of tangible personal property.

I am not completely sure if this would not be what governs it, but I'm also not sure it is.

I couldn't find a definition in U.C.C., neither in Magnuson-Moss.

Is there any case law on this or some other statute's definition that applies?


Authorities

§1791.1 (a)(2), (b) and (c)

"“[A] violation . . . is not willful if the defendant’s failure to replace or refund was the result of a good faith and reasonable belief the facts imposing the statutory obligation were not present[...]" (Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041, 1051 [104 Cal.Rptr.3d 853])

”The [Song Beverly] act provides for both express and implied warranties, and while under a manufacturer’s express warranty the buyer must allow for a reasonable number of repair attempts within 30 days before seeking rescission, that is not the case for the implied warranty of merchantability’s bulwark against fundamental defects.” (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1545 [173 Cal.Rptr.3d 454]”

“[T]he Act does not require consumers to take any affirmative steps to secure relief for the failure of a manufacturer to service or repair a vehicle to conform to applicable warranties—other than, of course, permitting the manufacturer a reasonable opportunity to repair the vehicle . . . . In reality, . . . , the manufacturer seldom on its own initiative offers the consumer the options available under the Act: a replacement vehicle or restitution. Therefore, as a practical matter, the consumer will likely request replacement or restitution. But the consumer’s request is not mandated by any provision in the Act. Rather, the consumer’s request for replacement or restitution is often prompted by the manufacturer’s unforthright approach and stonewalling of fundamental warranty problems.” (Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041, 1050 [104 Cal.Rptr.3d 853])

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    Why doesn't a dictionary definition of "retail" suffice? It's as clear as the one you cite from Sales and Use Tax Law § 6007. – BlueDogRanch Jun 20 at 19:48
  • Thank you for pointing that out! I'll add some more substance to the question. – kisspuska Jun 20 at 20:24
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    The fact that it is not in person, does not mean that it is not a "retail sale" which is a sale to an end user for use purposes as opposed to a "wholesale sale" to someone intending to resell it. – ohwilleke Jun 21 at 19:18
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    The question would be improved by removing the argumentative statements and characterization of the legal merits of the parties' positions, and just setting forth the facts and the question. – ohwilleke Jun 21 at 19:19
  • @ohwilleke thank you for the answer, and the suggestions; I will improve it accordingly! – kisspuska Jun 21 at 19:39
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The acts in question don't distinguish between online and in person sales. Both are retail sales. A retail sale is a sale for use rather than a wholesale sale for resale. Wholesale sales are exempt from sales tax and so are easy to distinguish. Online sales are still retail sales. It is a distinction without a difference.

Sales and Use Tax Law § 6007(a)(1) and common law case law would suffice. There is also case law under the UCC, and the relevant federal statutes. But, I doubt that the argument of the vendor would be that it didn't make a retail sale (at least once their lawyers got involved). More importantly, there is nothing that says that online sales aren't retail sales.

Bob should contact the online sales department to seek a remedy since he was advised by the company to contact that department. But the part of the company handling his complaint doesn't change his rights.

Warranty rights don't depend upon the intent of the parties. If a warranty arises and it good isn't as warranted, there is a legal right to a remedy.

If a store doesn't honor one's legal warranty rights, then you sue the store for damages, typically, in a court of limited jurisdiction, or if there is an arbitration clause, in a consumer arbitration forum (some of which are not actively doing business due to controversies in recent years, leaving a judicial forum open).

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  • @ohwilleme Thank you very much, greatly appreciated! Will fix up the issues you pointed out soon for a better record, too! – kisspuska Jun 22 at 0:46
  • do you §779.328 of the Electronic Code of Federal Regulations would read into Song-Beverly, too? That is a pretty detailed description too, pretty much in line with what you described. – kisspuska Jun 22 at 5:28
  • This sounds like a fair reading to me. At a minimum it would be persuasive authority. It isn't automatically applicable to interpreting all laws. – ohwilleke Jun 23 at 22:53
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This is since what I found from Cornell's Legal Information Institute:

§779.328 of the Electronic Code of Federal Regulations which seems to be the relevant authority unless a state, for example, Rhode Island, creates their own definition:

§ 779.328 Retail and wholesale distinguished.

(a) The distinction between a retail sale and a wholesale sale is one of fact. Typically, retail sales are made to the general consuming public. The sales are numerous and involve small quantities of goods or services. Wholesale establishments usually exclude the general consuming public as a matter of established business policy and confine their sales to other wholesalers, retailers, and industrial or business purchasers in quantities greater than are normally sold to the general consuming public at retail. What constitutes a small quantity of goods depends, of course, upon the facts in the particular case and the quantity will vary with different commodities and in different trades and industries. Thus, a different quantity would be characteristic of retail sales of canned tomato juice, bed sheets, furniture, coal, etc. The quantity test is a well-recognized business concept. There are reasonably definite limits as to the quantity of a particular commodity which the general consuming public regularly purchases at any given time at retail and businessmen are aware of these buying habits. These buying habits set the standard for the quantity of goods which is recognized in an industry as the subject of a retail sale. Quantities which are materially in excess of such a standard are generally regarded as wholesale and not retail quantities.

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  • @ColleenV Thank you! I see you used to be an ELL moderator! I was hoping to ask you if the original form: "Corp suggested that Bob do something" is not correct in subjunctive? – kisspuska Jun 22 at 5:27
  • @ColleenV I see, thank you very much! – kisspuska Jun 22 at 16:21

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