Code of Massachusetts Regulations
940 CMR - OFFICE OF THE ATTORNEY GENERAL
Title 940 CMR 3.00 - General Regulations
Section 3.01 - Definitions

As used in 940 CMR 3.00, the following words shall have the following meanings:

Act or practice. An act or practice shall include any threat or attempt to perform such act or practice.

Advertisement, Advertising, Advertise. Any commercial message in any newspaper, magazine, leaflet, flyer, or catalog, on radio, television, public address system, or made in person, in direct mail literature or other printed material, or any interior or exterior sign or display, in any window display, in any point of transaction literature or price tag which is delivered or made available to a customer or prospective customer in any manner whatsoever.

Agency. Any governmental unit, including, but not limited to, any agency, court, board, department, or division, that is charged with enforcing any law.

Bait Advertising. "Bait Advertising" is an alluring but insincere offer to sell a product which the advertiser does not intend or want to sell. Its purpose is to switch consumers from buying the advertised product in order to sell something else, usually at a higher price or on a basis more advantageous to the advertiser. The primary aim of a bait advertisement is to obtain leads as to persons interested in buying a product of the type so advertised.

Books. For the purposes of these rules, the term "book" or "books" as herein used shall be construed as embracing all or any books, supplements, yearbooks, pamphlets, magazines, looseleaf material, and other printed material, sold, offered for sale or distributed, unless the context of the particular rule indicates or implies a contrary construction.

Buyer. "Buyer" includes a lessee or renter.

Clear and Conspicuous Disclosure. Without limiting any other provisions of law, disclosures required by these regulations shall be of such size or color contrast and so placed as to be readily noticeable to purchasers or prospective purchasers reading advertising, sales promotional literature, or invoices containing same, or reading any representation as to content on the container in which the product is packed, or inspecting a product before installation or with a minimum of disassembly after installation. A term is conspicuous when it is so written that a person against whom it is to operate ought to have noticed it. Language in the body of a form is "conspicuous" if it is in larger or contrasting type or color.

Deceptive Warranty. For the purpose of this chapter a "deceptive warranty" is:

(a) A guarantee or warranty that contains an affirmation, promise, description, or representation that is either false, fraudulent, or that, in the light of all the circumstances, would mislead the consuming public; or fails to contain the necessary information to avoid misleading the consuming public; or,

(b) A guarantee or warranty created by the use of such terms as "guarantee" or "warranty" if the terms and conditions of such guarantee or warranty so limit its scope and application as to render the representation illusory, as where any costs or charges to the consumer attendant upon such work are prohibitive or approach the cost for the repairs absent any warranty or guarantee.

Door to Door Transaction. The sale, rental or lease of consumer goods or services with a purchase price of $25 or more whether under single or multiple contracts in which the buyer's agreement or offer to purchase is induced at a place other than the place of business of the seller.

Dwelling Unit. Any building or structure, or any unit therein or part thereof, and all the common areas inside and outside such building or structure, occupied or intended for occupancy as a residence by one or more individuals; including a mobile home or a lot therefor.

Law. Law shall include, but not be limited to, any federal, state, or local statute, rule, regulation, code, ordinance or by-law.

Market Emergency. Any abnormal disruption of any market for petroleum products, including but not limited to any actual or threatened shortage in the supply of petroleum products or any actual or threatened increase in the price of petroleum products, resulting from severe weather, convulsion of nature, failure or shortage of electric power or other source of energy, strike, civil disorder, act of war, national or local emergency or other extraordinary adverse circumstances.

Owner. Any person who holds title to one or more dwelling units in any manner including but not limited to a partnership, corporation or trust. For purposes of these regulations the term "owner" shall include one who manages, controls, and/or customarily accepts rent on behalf of the owner.

Person or Persons. The term "person" or "persons" as used in 940 CMR 3.00 includes an association, a corporation, an individual, an institution, a natural person, an organization, a partnership, and any other legal entity.

Petroleum Product. This term shall include, but shall not be limited to, motor fuels, as defined in M.G.L. c. 94, § 295A, and fuel oil used for heating or cooking purposes, as described in M.G.L. c. 94, § 303F.

Petroleum-related Business. Any producer, supplier, wholesaler, distributor or retail seller of any petroleum product.

Place of Business. The main or permanent branch office or fixed location for doing business of a seller. A booth at a fair or other temporary, stationary or mobile selling point does not constitute a place of business for the purposes of M.G.L. c. 93A.

Product. "Product" includes goods, whether tangible or intangible, real, personal, or mixed, services, or franchise or distribution systems of any nature whatsoever.

Repairs. To restore by replacing a part or putting together what is damaged or broken and shall include, but are not limited to, renovations or improvements of any sort to all or any part of a dwelling unit.

Sell. "Sell" includes lease, rent, or barter.

Supplies. All equipment, materials, or labor for repairs, decorations, renovations and improvements of any sort.

Rental Agreement. Any express or implied agreement for use and occupancy of a dwelling unit.

Tenancy. Occupation or use of a dwelling unit under a rental agreement.

Tenant. Any person who inhabits or is entitled to inhabit a dwelling unit under a rental agreement.

Warranty/Guarantee. The terms "warranty" or "guarantee" or any term connoting a warranty or guarantee as used in 940 CMR 3.00 are synonymous. The terms apply also to purported warranties and guarantees and to any promise or representation in the nature of a warranty or guarantee.

A warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. The serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. Goods to be merchantable must be at least such as pass without objection in the trade under the contract description; and in the case of tangible goods, are of fair average quality within the description; and are fit for the ordinary purposes for which such goods are used; and run within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and are adequately contained, packaged, and labeled as the agreement may require; and conform to the promises or affirmations of fact made on the container or label if any.

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose.

An express warranty or any statement in the nature of an express warranty or guarantee includes any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain. Any verbal or written representation, as well as any description of the goods, or sample or model of the goods which is made part of the basis of the bargain creates an express warranty. It is not necessary to the creation of an express warranty that the seller use formal words such as "warranty" or "guarantee" or that he have a specific intention to make a guarantee.