dissenting.
The issue presented by this case is a simple one: May a plaintiff take advantage of the private-right-of-action section of the Oregon Unlawful Trade Practices Act *173(UTPA) without alleging and proving that the defendant committed an unlawful trade practice in the sale of real estate, goods or services to the plaintiff? From the majority’s unequivocal affirmative answer to this question, I respectfully dissent.
The present UTPA derives from Oregon Laws 1971, chapter 744. See Gross-Haentjens v. Tharp, 38 Or App 313, 316, 589 P2d 1209; see also Mooney, The Attorney General as Counsel for the Consumer: The Oregon Experience, 54 Or L Rev 117 (1975). In its present form, the UTPA contains the following pertinent sections:
ORS 646.605(1) defines the “trade” or “commerce” that is the scope of the Act:
“(1) ‘Trade’ and ‘commerce’ mean advertising, offering or distributing, whether by sale, rental or otherwise, any real estate, goods or services, and includes any trade or commerce directly or indirectly affecting the people of this state.”
I understand this section to mean that the UTPA applies to consumer transactions, offered or completed. (Offers to engage in consumer transactions are covered because, although a private right of action is an important part of the UTPA, the Act’s principal focus is on preventive action by the Attorney General, and the Attorney General needs to be able to take action against unlawful practices before any transactions have been completed. See, generally, ORS 646.618, 646.622, 646.626 and 646.632.)
Also pertinent to the UTPA’s scope is subsection (7) of ORS 646.605, which defines a phrase used in subsection (1):
“(7) ‘Real estate, goods or services’ means those which are or may be obtained primarily for personal, family or household purposes. * * *” (Emphasis supplied.)
Thus, transactions between business entities are not within the purview of the Act. One who seeks damages must show he brought, rented or otherwise obtained the real estate, goods or services in question for his personal use. See Graham v. Kold Kist Beverage Ice Inc., 43 Or App 1037, 607 P2d 759 (1979); Denson v. Ron Tonkin Gran Turismo, Inc., 279 Or 85, 90 n 4, 566 P2d 1177 (1977).
*174Having defined the UTPA’s scope, I next turn to what is, in my view, the crux of this case: the definitions of unlawful trade practices. All the parties (and the majority) agree that the following portions of ORS 646.608(1) are pertinent to this analysis:
“(1) A person engages in an unlawful practice when in the course of the person’s business, vocation or occupation the person:
<<‡ * * * *
“(e) Represents that real estate, goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, guantities or qualities that they do not have. * * *;
a* * * * *
“(g) Represents that real estate, goods or services are of a particular standard, quality, or grade, or that real estate or goods are of a particular style or model if they are of another;
“* * * * (Emphasis supplied.)
The emphasized portion of ORS 646.608(1) is pivotal in this case. In my view, the phrase “* * * in the course of the person’s business, vocation or occupation” means that, in order to be actionable under the UTPA, a person’s actions must be committed in the course of some revenue-producing activity in which the person engages on a more than casual basis. Even more importantly, however, I believe that the phrase contemplates that, inasmuch as the UTPA speaks to practices committed in the course of a “business, vocation or occupation,” the person who is entitled — as a private party — to take advantage of the act must show that he has engaged in some consumer transaction with the offender. I believe the foregoing conclusion follows ineluctably from the language of the private-right-of-action section of the UTPA, ORS 646.638(1):
“(1) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of wilful use or employment by another person of a method, act or practice declared unlawful by ORS 646.608, may bring an individual action in an appropriate court to recover actual damages or $200, whichever is greater. The court or jury, as the case may be, may award punitive damages. * * *” (Emphasis supplied.)
*175That is, where an offender has used an unlawful practice, the other party to the transaction, if he suffers any ascertainable loss, has a cause of action. The existence of a consumer transaction between the two parties is pivotal. Such a construction gives the UTPA all the scope it needs to accomplish its legislative purpose — it permits anyone who is injured by an unlawful practice in the course of an otherwise qualifying commercial transaction to sue.
The majority’s view is otherwise. The majority opinion first deals with defendant’s contention that there is no proof that it made any actionable representations to plaintiff or to a third party with the knowledge that they would then be communicated to plaintiff. It then makes this statement:
“* * * The [UTPA] does not require that there be a loss to an individual consumer for there to be a violation. If there is ascertainable loss to a consumer, that consumer has a cause of action for general and punitive damages. ORS 646.638(1). The elements of the cause of action are specified in the statute and the consumer may recover by alleging and proving that there was a wilful violation of the provisions of the Act and ascertainable damages as a result of a violation. There is no requirement that the representations which constitute a wilful violation of the Act be made to the injured consumer. * * *” 59 Or App at 171.
In other words: If you commit an act of misrepresentation which violates the UTPA, and someone is damaged, it is irrelevant that you could have not foreseen that that person would ever receive your misrepresentation.
As the majority sees it, then, the UTPA requires only that there be a causal connection between the unlawful act and the harm; no vendor-vendee or other seller-consumer relationship between the parties is necessary. In fact, the parties could be total strangers. The difficulty with the majority’s view is that, if it is accepted, the field of tort law will have undergone a fascinating sub silentio remodeling. One example should illustrate this point: A garageman, X, sells A a set of shock absorbers for his car. One shock absorber fails, sending the car out of control; it smashes into B’s greenhouse. A discovers the shock absorbers were reconditioned, rather than new; he tells B. B sues X, not *176not for negligence, but for violation of the UTPA. Because the sale by X to A did violate ORS 646.608(l)(e), (f) and (g), B would prevail under the majority rationale.
In this case, defendant is alleged to have given an inaccurate report on pest damage to a certain house to a third party. The third party paid for the report. Defendant is in the “business” of making such reports, not the business of selling real estate. ORS 646.608(1) is directed at consumer transactions. It does not, to be sure, strictly limit its liability to sellers of real estate, goods or services. Still, the alleged unlawful practice must occur in connection with a sale in order for the Act to apply. And the sale here was of real estate by the third party to plaintiff. There is no claim that the third party knew or had reason to know that defendant’s pest report was erroneous. The third party is not even a defendant. Yet we hold today that a third party who is not a seller may be held liable to a purchaser under the UTPA where (1) it was not acting in conjunction with the seller and (2) in fact, it might not even have even known of the planned sale.
The proper rule would require that defendant be in the business of selling the misrepresented product, or be associated with the party that is in such a business, and that defendant commit the unlawful trade practice act knowing that the ultimate victim would receive the misrepresentation. Because the purposes of UTPA can, in my view, be fully vindicated without the adventuring which the majority undertakes in this case, I respectfully dissent.
Warren and Young, JJ., join in this dissent.