TITLE 12          TRADE ,COMMERCE, AND BANKING

CHAPTER 2      CONSUMER PROTECTION

PART 9             NEGOTIATING A SALE IN A LANGUAGE OTHER THAN ENGLISH

 

12.2.9.1             ISSUING AGENCY: Office of the New Mexico Attorney General.

 

12.2.9.2             SCOPE:  [Transactions that are negotiated in a language other than English and are finalized in an English-written agreement.]  Any transaction in conjunction with trade or commerce that is presented, negotiated, discussed or conducted in a language other than English that leads to the execution of an English-Language written agreement.

 

12.2.9.3              STATUTORY AUTHORITY: The New Mexico Unfair Practices Act, Section 57-12-1, et seq. NMSA 1978 and New Mexico False Advertising Act, Section 57-15-1 et seq., NMSA 1978.

 

12.2.9.4              DURATION: Permanent

 

12.2.9.5              EFFECTIVE DATE:  September 15, 2009, unless a later date is cited at the end of a section.

 

12.2.9.6              OBJECTIVE: [The purpose of this rule is to deter unfair and deceptive practices that result in economic harm to consumers in transactions that are negotiated in a language other than English and are finalized in an English-written agreement without a translation of the material terms and conditions in the same language used in the oral sales presentation or negotiations.]  This rule is to provide a guide to any person that offers, solicits the purchase of, and sells or leases goods and services in New Mexico, or that extends credit, or that engages in the collection of debts, where the language principally used in the transaction is not English. Additionally, this rule is intended to deter unfair and deceptive or unconscionable trade practices in New Mexico in transactions that are presented, negotiated, discussed or conducted where the language principally used is a language other than English, but that are finalized in an English language written document.

 

12.2.9.7               DEFINITIONS:

         A.      “Trade” or “commerce ” includes the advertising, offering for sale, distribution, lease, rental or loan of goods or any services and any property and any other article, commodity or thing of value, or in the extension of credit or in the collection of debts by a person, including any trade or commerce directly or indirectly affecting the people of this state.

         B.      “Language principally used” means the language that is used to discuss, present, [or] negotiate [the material terms and conditions of the sale] or conduct any transaction within trade or commerce regardless of the partial use of some concepts, phrases or words in the English language [during the negotiations or sales presentation]. The “language principally used” may be a written language or a language that is a traditional oral language.

         C.      “Material terms and conditions” means those terms and conditions to which a reasonable person would attach importance in making his or her choice of action regarding a transaction, or that the business or its agent, employee or representative knows or has reason to know that the consumer regards, or is likely to regard, as important in determining his or her choice of action in the transaction.

 

12.2.9.8               UNFAIR OR DECEPTIVE TRADE PRACTICE: It is an unfair and deceptive business trade practice for any [seller to fail to furnish the buyer with a summary translation of any receipt or contract pertaining to the sale of goods or services at the time of its execution that is in the same language as that principally used in the oral sales presentation or negotiations.] person engaged in a business transaction in New Mexico resulting in the execution of an English language written agreement, and:

         A.      When the language principally used is a language other than English, to fail to furnish the consumer with a written summary of the material terms and conditions of the parties’ agreement at the time of its execution, translated in the same language as that principally used in the transaction; or,

         B.      When the language principally used is a traditional oral language other than English, to fail to read to the consumer an oral translation of the material terms and conditions of the parties’ agreement at the time of its execution, translated in the same language as that principally used in the transaction.

         C.      To provide a materially inaccurate translation, either written or oral, including, but not limited to, a translation that omits a material fact.

 

12.2.9.9               REQUIREMENTS WHEN [ANOTHER] A LANGUAGE OTHER THAN ENGLISH IS PRINCIPALLY USED [TO SELL GOODS AND SERVICES]:

            [A. The summary translation must contain the material terms and conditions of the parties’ agreement.

            B. Sellers must also furnish the English language receipt or contract.

            C. If the language used principally during the oral presentation or negotiations is not a written language, the seller or his representative must provide a summary containing the material terms and conditions in English but must also read the material terms and conditions orally to the consumer in language used during the presentation or negotiations.  The reader must certify that he or she is fluent in that language and that he or she accurately read the summary translation to the buyer in the language principally used during the oral presentation or negotiation.]

         A.      In the case of written languages other than English, any person engaged in trade or commerce shall provide a written summary of the material terms and conditions of the parties’ agreement translated into the same language principally used in a trade or commerce transaction to the consumer prior to execution of the final English language transaction documents. A complete translation of the final written agreement document and all other documents related to the transaction satisfies the translation requirements of this rule.

         B.      When the language principally used is a traditional oral language, the business shall certify in writing that a true and correct translation of the material terms and conditions was orally read to the consumer by a translator fluent in both the English language and the language principally used in the transaction. The translator shall sign a written certification setting forth his or her name and contact information and affirming that he or she is fluent in both the English language and the language principally used in the transaction.  Both translation certifications must be made part of the transaction file and the consumer must be provided with a copy of both certificates of translation.

         C.      Any person subject to this rule must also furnish the complete English language receipt or agreement to the consumer at the same time of delivery of the translated summary.

 

12.2.9.10             SEVERABILITY: If any part of this rule is held invalid, the remainder and the application thereof shall not be affected.