1. MISTAKE
Mistake is where the one or both parties shared a mistaken assumption or confusion as to terms or object within a contract. if the parties entered into a contract under the same wrong assumption, that contract maybe void for common mistake if the mistake is so fundamental that it nullifies agreement. The law distinguishes three kinds of mistakes: common, mutual and unilateral. If both parties made the mistake it constitutes common mistake contrary to unilateral mistake where only one party made the error. Likewise, if parties both make mistake at cross purposes, it identifies mutual mistake.
2. MISREPRESENTATION
Misrepresentation is another factor which adds impact on validity of contract. When one party give deceitful information which influences
…show more content…
UNFAIR CONTRACT TERMS
Andrews (2011) states that unfair contract terms excludes a person to any bias concerning his right or remedy under contract. In case the court discovers an unfair term, it will convey no legal effect and will not be binding.
The last three avoidances are said to be stronger where it is codified in Australian Consumer Law (ACL). This statute of law is under the Competition and Consumer Act of 2010 which then formerly known as Trade Practices Act 1974. This legislation was made primarily for consumer protection against unfair trading.
V. REMEDIES
The common law will hold an agreement to be binding as long as the essential elements of a contract are available (i.e. offer and acceptance, consideration, intention to create legal relations and certainty) and no vitiating factors present. When a party breach, avoid or do not perform the promise in stipulated to the terms of the contract, the non-breaching party is entitled to have remedies. Court will often award damages to the other party depending on the circumstances of the case. As soon as the court recognised legal rights, the court will then give either legal or equitable remedy (Willmott et al. 2012).
1. COMMON LAW
The role of law reform has responded rather effectively to a certain extent in protecting the rights of consumers. This is evident in the legal responses introduced to address issues of credit, marketing innovation and technology. These law amendments has effectively increase the protection of the rights of consumers to a certain extent, however loopholes still exist. Due to the increasing range of goods and services continues to grow and the failure of existing laws, the role of law reform has been significant in protecting the rights of consumers. Consumer laws were created to prevent deceitful activities, or unfair business practices, as well as serving a protection for weaker parties who are unable to protect themselves. However, laws were later reformed to enable customers to transact with confidence and protect suppliers, consumers from inappropriate business conduct and to reflect changed community values and circumstances.
Firstly it is important to explore the reason of Consumer Law. Consumer Law is designed to prevent business to engage in unfair practices, gaining an advantage over competition and also to provide protection to those who are weak. Furthermore it is to provide protection to consumer, encourage consumption and help inform consumer and suppliers of their rights. Additionally Consumer Law helps deliver a competitive economy which engages in fair trade actions.
The decision in Equuscorp is significant, as it has made clear several principles that were once ambiguous under Australian law. It ratifies that restitutionary remedies are unavailable for a claim for money had and received where recovery would reduce coherence in the law. Furthermore, Equuscorp has confirmed that a bare cause of action can be assigned where the assignee has a genuine commercial interest in its enforcement.
Legal Studies Essay Joey Agerholm Exclusion clauses determine the liability of something that might go wrong within a contract. They are used by sellers as an attempt to avoid or limit their liability. The seller has the advantage over the buyer who must agree to the clauses to purchase the product/service. Because of the buyers disadvantage the court takes such cases, involving exclusion clauses, very seriously, and the content of the clauses are carefully interpreted. With the current Trade Practises Act and the Fair Trading Act the standard form of business contract is adequate and effective in protecting the buyer. The Trade Practise Act is the most effective legislation for the protection of the consumer. It implies to the following situations:- - “A promise by the seller that the buyer will become the owner” If a car dealer breaks a promise or part of a contract, for example that he has the right to sell a car, and the car is stolen then although the buyer will have to give the car back he/she will get her money back. - “ A promise by the seller that goods will fit the description supplied by the seller” In this case the buyer is protected if the seller makes a promise, which is a condition of the contract, describing the product, and when the buyer receives the product, it does not match the description. - “ A promise where the seller is made aware of the purpose for which the goods are required, that the goods will be reasonably fit for that purpose” This condition is implied when the buyer makes the purpose of the goods needed known to the seller, and the buyer then relies on the seller’s judgement in providing the correct product. For example it would not be reasonable if you made the seller aware that you wished to purchase something suitable for mowing the average suburban backyard and you were sold a tractor. - “A Promise that goods are of merchantable quality” According to this act a good is considered to be merchantable if they are suitable for the prospect for which other similar goods are sold, involving the description applied to them, the price and any other relevant information. This act does however does not protect the consumer if he/she has examined the product and missed any defects that should have been seen or if the seller made him/her aware of the defect prior to the purchase of the product.
A Bilateral Mistake- is where both parties of the contract are in knowledge of the mistake in the agreement.
Andrews N, Strangers to Justice No Longer: The Reversal of the Privity Rule under the Contracts (Rights of Third Parties) Act 1999 (2001) 60 The Cambridge Law Journal 353
The Australian Consumer Law ensures that regulations are put in place to regulate fair-trading between businesses and consumer. It is a national law that guarantees what the rights consumers have when buying goods and or services. For instance in the Australian Consumer Law ‘Chapter 2- General protections Part 2-2 Unconscionable conduct ‘ person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time’. Unconscionable conduct allows the parliament to regulate the way in which businesses do trading and makes them more accountable for their conduct. Unconscionable conduct ensures the interaction between a dominant and weaker party, which directly allows the parliament to prevent businesses using their power over weaker/disadvantaged members within society to sell products or services. Commercial Bank of Australia v
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
statements may be the result of either a honest mistake or a lack of integrity
For the contract to be enforceable, the contracting parties must have a common mind on the terms given in the contract. This means that what the contracting party holds the contract to be must be the same to what the party being offered the contracts hold to be. In this sense, the two must agree at the same time, to the same idea. If one party is misled, the contract is voidable. Communication between the parties are used to determine whether a contract is voidable or not. In this case, the communication was oral which can still be used to determine the existence of the contract.
1.1 Explain at least four points of differentiations between contract and agreement with the help of examples.
S.6(2) states that as against a person dealing as consumer, liability for breach of the obligations arising from ss.13, 14 or 15 of the Sale of Goods Act 1979 (seller's implied undertakings as to conformity of goods with description or sample, or as to their quality or fitness for a particular purpose) cannot be excluded or restricted by reference to any contract term.
Both the common law and the statutory law have recognized the weaker position of consumers. It is well established an exclusion clause will be valid and enforceable only if it is incorporated in the contract, use clear wordings and does not contravene statutory limits. In order to limit the unfairness resulting from exclusion clauses, the courts have developed certain principles such as the doctrine of non est factum in signature cases, ‘red ink-red hand’ principle in relation to ‘onerous or unusual’ terms, contra proferentem rule when interpreting ambiguous exclusion clauses and ‘fundamental breach’ principle.
Misrepresentation – giving a false statement to the other party with the intentions to benefit or to exploit the other party than the law can end the contract in that case.
Thus, consumer protection laws, prohibit unfair or defective acts from being practiced by companies.