To your point about a mistake being a mistake - I agree, but Pace Bonner solicited the company for a specific part. He wanted only that specific part and the company told him that he was getting that specific part. According to Pace..
' they sold me the wrong part. They even wrote on the ECU "2005 K1200LT". '
According to Pace, when he figured out that the part was not the right one, they refused to work with him. That is the point where, for me, a mistake becomes potentially actionable. Depending on how much I paid for the part, how much value I got from it, etc I may or may not sue in the same situation. For the record, I've never sued anyone.
However, if we change the facts slightly and instead of an ECU, Pace is looking to buy an 18k gold watch, if two years later, he finds out that the shop mistakenly (not knowingly) sold him a 10k gold watch, would you still say "a mistake is a mistake"? Probably not because it's much easier to see that in the watch example he didn't get what he paid for and easier to approximate a lost value. But he didn't get what he paid for with the ECU either and there obviously is *some* lost value to Pace as a result. Further, it was the seller who identified the item as the one which satisifed his request.
Again, not advocating that everyone run out and sue anyone who makes a mistake, but I did want to let Pace and others know that they have some legal recourse that may actually be worthwhile pursuing.
As for the DTPA, it does not require the consumer to prove intent, they purposely left that out because there is already a common law cause of action, fraud, that has an intent requirement. Proving intent is difficult in most situations like this and as a result, if not for the DTPA, consumers would have a much less appealing avenue to address their grievances.
I've included a link to a summary/explanatory article of the DTPA
written by a law school professor who teaches consumer law and is a Houston consumer advocate. The following two points are taken from the article and are related to your (George's) position. These are from page 6 of the PDF (marked as page 79 on the actual page). Even though this article is from 2005, the points in it that are relevant to Pace's situation I believe to be accurate up to at least this past July - which is the last time I had any reason to be concerned about that law.
1. Note that the Act requires that in addition to establishing the act or practice, the consumer must show that the act was “relied on by a consumer to the consumer’s detriment.”
2. It is also significant to note that knowledge or intent is not an element of a laundry
list violation, unless required by the particular subdivision. This is a substantial change from common law fraud. For example, in Pennington v. Singleton
, Singleton sold his boat to Pennington. Singleton had never sold a boat before and was not in the business of selling boats. Singleton made oral statements to Pennington that the boat and motor had just had $500 worth of work and was in “excellent condition,” “perfect condition,” and “just like new.” These statements were made as statements of fact. The statements were false because the mechanic had not adequately repaired the motor. Singleton did not know the statements were false, did not intend to mislead Pennington, and acted in good faith. The court found that Singleton violated subsection 17.46(b)(5) and (7). These subsections do not require proof of knowledge or intent.