The opinion
Griffin, P.J.
(dissenting). I respectfully dissent. I do not believe that the instant sale falls within the definition of a "home solicitation sale” under the home solicitation sales act (hssa), MCL 445.111 et seq.; MSA 19.416(201) et seq.
The hssa provides:
(a) "Home solicitation sale” means a sale of goods or services of more than $25.00 in which the seller or a person acting for the seller engages in a personal or telephone solicitation of the sale at a residence of the buyer and the buyer’s agreement or offer to purchase is there given to the seller or a person acting for the seller. Home solicitation sale does not include a sale made pursuant to a preexisting revolving charge account, a sale made pursuant to prior negotiations between the parties at a business establishment at a fixed location where goods or services are offered or exhibited for sale, a sale of insurance by an insurance agent licensed by the commissioner of insurance, or a sale of services by a real estate broker or salesperson licensed by the department of licensing and regulation. Home solicitation sale does not include a sale of agricultural or horticultural equipment and machinery which is demonstrated to the consumer by the vendor at the request of either or both of the parties. [MCL 445.111; MSA 19.416(201).]
The sale in the instant case was made in re *393 sponse to a telephone call from Jacob to Brown’s place of business requesting an estimate for several nonemergency home repairs. It is undisputed that Jacob had not been solicited by Brown in any fashion whatsoever. 1 After viewing the residence at the invitation of Jacob, the parties executed a written contract in the home for the requested construction repairs. Under the plain language of the home solicitation sales act, this sale does not constitute a "home solicitation sale,” since it was the result of prior negotiations between the parties at the business establishment of Brown (albeit over the telephone). See MCL 445.111(a); MSA 19.416(201)(a). More importantly, the resulting contract was wholly consumer initiated. The contractor, Brown, did not solicit the sale. On the contrary, it was Jacob who sought out Brown. Thus, I would affirm the lower court and hold that the act does not apply under these circumstances.
I note that other jurisdictions have addressed similar factual scenarios within the context of their home solicitation sales acts. In Tambur’s, Inc v Hiltner, 55 Ohio App 2d 90; 9 Ohio Op 3d 239; 379 NE2d 231 (1977), the consumer contacted the contractor by telephone, inviting the contractor to her residence for the purpose of submitting a home repair and remodeling estimate. She later "cancelled” the contract, and asserted the Home Solicitation Sales Act as a defense to the contractor’s suit for breach of contract. In rejecting the defense, the Court of Appeals of Ohio held that, where the consumer initiates the contact between the parties, the transaction is excluded from the protection of the Home Solicitation Sales Act, Ohio *394 Rev Code 1345.21(A)(4). 2 Further, the Court of Appeals ruled that, because the sale was made pursuant to prior negotiations between the parties at the seller’s place of business, the act was not applicable.
In All American Pools, Inc v Lato, 20 Conn App 625; 569 A2d 562 (1990), the Appellate Court of Connecticut held that the Connecticut Home Solicitation Sales Act did not apply to a consumer initiated contract to repair a swimming pool. The unsolicited consumer-defendant in All American Pools contacted the plaintiff at plaintiffs place of business to engage plaintiffs services to repair defendant’s swimming pool. A written contract was later executed at the defendant’s residence. After the defendant failed to pay for the agreed-upon pool repairs, plaintiff filed suit. The Appellate Court of Connecticut rejected the argument that the contract was void by operation of the Home Solicitation Sales Act, holding that the act was inapplicable because the initial contact was consumer initiated and occurred at the plaintiffs office.
While there are differences between our act and those of other jurisdictions, 3 the spirit and pur *395 poses of the acts are the same. For example, the New York statute specifically provides that its purpose is "to afford customers a 'cooling off period to cancel contracts which are entered into as a result of high pressure door-to-door sales tactics.” NY Personal Property Law, § 425.
The instant situation is not the type of transaction that the Michigan hssa was designed to regulate. The legislative histories of these statutes indicate that their purpose was to protect consumers from intrusions into their homes by door-to-door and telephone solicitors. In those circumstances, the consumer has not yet prepared himself or herself for the negotiation process or braced himself or herself for the possibility of high-pressure sales tactics. The consumer is therefore in a uniquely vulnerable position and is susceptible to an unwanted sale of consumer goods. The home solicitation sales act serves to protect the consumer from such vulnerabilities.
By contrast, the sale between the instant plaintiff and defendant is not of the type to be protected under the Michigan hssa. The defendant here sought out the plaintiff contractor without any solicitation from the plaintiff. Defendant was fully prepared and able to negotiate for the repairs to his home. There was little danger that defendant would be unduly pressured by the plaintiff since the defendant clearly initiated and controlled the negotiation process.
Defendant has simply failed to pay for repairs to his home that he ordered. It would be án affront to the spirit and purpose of the hssa to allow him refuge under its provisions. Accordingly, I would affirm.
At oral argument, the parties agreed that Jacob called Brown after a friend of Jacob’s had recommended Brown.
The Ohio Home Solicitation Sales Act provides in pertinent part:
(A) "Home solicitation sale” means a sale of consumer goods or services in which the seller or a person acting for him engages in a personal solicitation of the sale at a residence of the buyer, including solicitations in response to or following an invitation by the buyer, and the buyer’s agreement or offer to purchase is there given to the seller or a person acting for him, or in which the buyer’s agreement or offer to purchase is made at a place other than the seller’s place of business. It does not include a transaction or transactions in which:
(4) The buyer initiates the contact between the parties for the purpose of negotiating a purchase and the seller has a business establishment at a fixed location in this state where the goods or services involved in the transaction are regularly offered or exhibited for sale.
See generally 16 CFR 429.1; Cal Bus & Prof Code, § 17500.3; Conn *395 Gen Stat Anno, § 42-134a; Fla Stat, § 501.021 et seq.; Kentucky Rev Stat, § 367.410 et seq.; NY Pers Prop Law, § 425 et seq.