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Deceptive Selling, Careless Buying

    Revisiting a previous column in this magazine (see June 1995 DBA Houston), the Texas legislature did amend - as promised or threatened - the definition of "unconscionable conduct" as used in the Deceptive Trade Practices Act ("DTPA").

    Translated from legalese, the new definition means that gross overcharging in itself is no longer a deceptive trade practice.  The alternative definition of "unconscionable conduct" which underwent some modification covers conduct which, "takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree."

    Few would question that the sale of a stale candy bar to an eight-year-old for five dollars would be grossly unfair.  Children are recognized to have limited capacity, knowledge and experience.  But for adults the question gets stickier. Just how much knowledge is an adult expected to have.

    Not long ago, only highly skilled professionals would have even considered purchasing a computer, and only highly skilled professionals would have tried to sell them.  Not so today.  The personal computer has become a consumer item, sold in retail outlets from Sears to Service Merchandise and by any number of mail order outfits.  Yet the personal computer is a highly complex piece of equipment.

    How many retail stores are prepared to open the box and let the customer examine the wiring, the brand names of components, the quality of the soldering?  How many consumers have the ability to examine those items if allowed?  Not many.

    If the consumer announces total ignorance of computers to the salesperson, does this put an ethical or legal burden on the salesperson not to lead the customer astray.  Is the answer different if the store bills itself as a self-service warehouse facility?  Does the answer change if the store publicly advertises its highly trained sales staff, available to help you make the right decision?  How much can one mislead an ignorant buyer before one's conscience should kick in?  If the salesperson is not knowledgeable about computers, is it ethical to present oneself as an expert in order to make the sale?

    Then again, what is the buyer's obligation?  In this information age, information is for sale in many forms.  Magazine racks are filled with publications to teach the consumer how to choose a computer.  It's not that hard to learn some basic specifications.  Is the buyer allowed to be lazy, with the burden of his laziness placed entirely upon the seller?  If the buyer wants to be lazy, or simply hasn't the time, there are a myriad of computer consultants available to help one decide correctly - for a price.  As the old saying goes, a fool and his money are soon parted.  Who owes what obligation to a fool?

Copyright 1995 Daniel A. Krohn
Previously published in DBA Houston November 1995