476-1 Definitions. In this chapter, unless the context or subject matter otherwise requires:

"Annual percentage rate" means the annual percentage rate of finance charge determined in accordance with the federal Truth in Lending Act.

"Cash price" means the price at which the seller, in the ordinary course of business, offers to sell for cash the goods or services that are the subject of the credit sale. At the seller's option, the term may include the price of accessories, services related to the sale, service contracts, general excise and other taxes, and taxes and fees for license, title, and registration. The term does not include any finance charge.

"Closed-end credit" means a credit sale that is not "open-end credit".

"Credit buyer" means any person who buys goods, services, or both, from a credit seller in a credit sale and who executes a credit sale contract in connection therewith.

"Credit sale" or "sale" includes any sale of goods, services, or both, by a credit seller pursuant to a credit sale contract other than:

(1) Any sale for the purpose of resale; or

(2) Any sale:

(A) Primarily for a business, commercial, or agricultural purpose; or

(B) To other than a natural person, including a sale to government agencies or instrumentalities; or

(C) Not secured by real property, or by personal property used or expected to be used as the principal dwelling of the consumer, in which the principal balance, less any prepaid finance charge, exceeds $25,000 or in which there is an express written commitment to extend credit in excess of $25,000;

unless the credit seller elects that the sale be a credit sale subject to this chapter, such election being conclusively presumed from the compliance of the contract with section 476-3(c) and (d); or

(3) Any sale involving public utility services provided through pipe, wire, other connected facilities, or radio or similar transmission (including extensions of such facilities), if the charges for service, delayed payment, or any discounts for prompt payment are filed with or regulated by any government unit, except the sale of durable goods or home improvements by a public utility; or

(4) Any sale in a securities or commodities account in which credit is extended by a broker-dealer registered with the Securities and Exchange Commission or the Commodity Futures Trading Commission.

"Credit sale contract" or "contract" means any agreement, including a conditional sale contract, a retail installment contract, or any other form of instrument evidencing an obligation to pay the price of goods, services, or both, purchased in a credit sale, either:

(1) By payment thereof over a period of time subject to a finance charge; or

(2) Pursuant to a written agreement, subject to payment in more than four installments not including a down payment,

whether or not the contract contains a title retention provision. "Credit sale contract" includes any contract for the bailment or leasing of goods (unless terminable without penalty at any time by the bailee or lessee) by which the bailee or lessee contracts to pay as compensation a sum substantially equivalent to or in excess of the value of the goods and services involved and by which it is agreed that the bailee or lessee is bound to become, or has the option of becoming, for no additional consideration or for nominal consideration, the owner of the goods upon full compliance with the terms of the contract.

"Credit seller" or "seller" means a person:

(1) Who regularly sells goods, services, or both, to credit buyers, and

(2) To whom the obligation is initially payable on the face of the contract.

"Federal Truth in Lending Act" means the federal Truth in Lending Act (15 U.S.C. 1601, et seq.), Regulation Z of the Board of Governors of the Federal Reserve System, and the Official Staff Commentary to Regulation Z prepared by the staff of the Federal Reserve Board, and amendments of the Act, Regulation Z, and such Commentary.

"Finance charge" means the amount, however denominated or expressed, which the credit buyer contracts to pay or pays for the privilege of purchasing goods, services, or both, to be paid for over a period of time under the terms of the credit sale contract. It includes any charge payable, directly or indirectly, by the buyer and imposed, directly or indirectly, by the seller as an incident to or a condition of the buyer's privilege of paying over a period of time. It does not include any charge of a type payable in a comparable cash transaction. The types of charges included in and excluded from the finance charge shall be the same as provided by the federal Truth in Lending Act.

"Goods" includes all things which are movable at the time the credit sale is entered into or which will be movable when they thereafter come into existence or which are or will be fixtures (sections 490:9-334 and 490:9-604). Except as provided in this paragraph, "goods" does not include money, documents, instruments, accounts, chattel paper, general intangibles, or minerals or the like (including oil and gas) before extraction. "Goods" includes standing timber which is to be cut and removed under a conveyance or contract for sale, the unborn young of animals, growing crops, and merchandise certificates or coupons, issued by a credit seller, to be used in the face amount in lieu of cash in exchange for goods sold by such a seller.

"Open-end credit" means one or more credit sales made by a credit seller under a plan in which:

(1) The credit seller reasonably contemplates repeated transactions;

(2) The credit seller may impose a finance charge from time to time on an outstanding unpaid balance; and

(3) The amount of the price of the goods, services, or both, that the credit buyer may defer from time to time during the term of the plan (up to any limit set by the credit seller) is generally made available to the extent that any outstanding balance is repaid.

"Person" means a natural person or an organization, including a partnership, corporation, association, proprietorship, cooperative, estate trust, government unit, or other group however organized.

"Prepaid finance charge" means any finance charge paid separately in cash or by check before or at the time that a buyer becomes contractually obligated on a credit sale, or withheld from the proceeds of the credit sale at any time, except any finance charge that is stated as a dollar amount and is added on or deducted in advance in the manner described in section 476-28(1).

"Principal balance" means the sum of the cash price less the amount of the buyer's down payment, plus any other amounts, including any amounts actually to be paid by the seller pursuant to an agreement with the buyer to discharge a security interest, lien, or lease interest on property traded in, that are financed by the seller and are not part of the finance charge.

"Services" include:

(1) Work, labor, and other personal services of any kind whether or not furnished in connection with the delivery, installation, servicing, repair, or improvements of goods, and includes repairs, alterations, or improvements upon or in connection with real property;

(2) Privileges, with respect to transportation, hotel and restaurant accommodations, education, entertainment, recreation, physical culture, hospital accommodations, funerals, cemetery accommodations, and the like; and

(3) Fees, costs, fines, bails, or other charges assessed, accepted, or collected by a court of law.

"Total of payments" means the sum of the principal balance and the finance charge.

"Total sale price" means the sum of the cash price, any other amounts that are financed by the seller and are not part of the finance charge, and the finance charge. [L 1961, c 102, pt of 1; am L 1963, c 68, 1, 3; Supp, 201A-1; am L 1967, c 43, 1 and c 285, 1; HRS 476-1; am L 1970, c 56, 1; am L 1976, c 32, 1; am L 1980, c 50, 2; am L 1984, c 86, pt of 1; am L 2000, c 241, 4; am L 2006, c 10, 1; am L 2008, c 19, 1]

 

Revision Note

 

In definition of prepaid finance charge, "476-28(1)" substituted for "476-27(1)".

 

Cross References

 

Motor vehicle dealers, see 437-32 to 437-34.

 

Case Notes

 

Truth in Lending Act requires creditor to disclose existence and impact of an acceleration clause in a retail installment contract. 573 F.2d 572; 573 F.2d 577.

Question whether contract to provide for funeral services for price payable in installments comes within this chapter, raised and trial court directed to determine it on remand. 50 H. 177, 434 P.2d 750.

 

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