Implied terms -legislative Ch 2, Pt 3-2, Div 1 of the ACL (formerly Pt V, TPA) implies terms into contracts between the

supplier of goods & services and the consumer to consumer guarantees. consumer contract? <40k, or for personal, domestic or household use or consumption, and if goods, not to be used in resupply or production process of trade. (s 3 ACL; 32D FTA) Company to consumer: Schedule 2 of Competitions and Consumer Act 2010 (hereafter referred to as the ACL) Consumer to Consumer Fair Trading Act 1999 (Vic) (hereafter referred to as the FTA) Company/consumer to non-consumer: *these can be excluded from contract The Goods Act 1958 (Vic) (hereafter referred to as the GA)

Title (seller has right to sell): s51 ACL, S32G & 32 GA FTA, S 17 GA

ACL/FTA

Will match Description: s 56 ACL, S 32h FTA, s 18 GA Fitness for use: s 55, ACL s 32IA FTA, s 19 (a) FTA, of Merch Quality: (more below) S 54 ACL S 32I FTA S 19(b) GA Sample: s 57 ACL s 32 HA FTA s 20 GA Safety: definition: s 9 ACL

Goods Act can be excluded.

ACL AND FTA APPLY

*Merch quality (Contd) Acceptable quality is defined in s 54(2) ACL as being goods fit for all the purposes for which goods of that kind are commonly supplied having regard to s 54(3) ACL: the nature of the goods, the price, any statements about the goods on the label or packaging, or made by supplier, any other relevant circumstances relating to supply of the goods If a consumer sues a seller of goods which are not of acceptable quality, the seller has a right of indemnity against the manufacturer of those goods: see s 274, ACL (former s 74H, TPA). no exclusion clause to indemnify manufacturers: Section 150, ACL No exclusion clauses against the ACL: Section 64, ACL s 7 ACL- definition of manufacturer. s 9 ACL- defines safety defect in relation to goods as meaning if their safety is not such as persons are entitled to expect and lists relevant matters to take into account. s 138 CCA - allows a claim by ANY individual suffering loss as a result of injury. Note: this does not need to be a purchaser of goods; any bystander or user is entitled to claim. s 139A CCA (cth) - in contracts for the sale of recreational services, clauses excluding or limiting liability as to death or personal injury are not void. S 140, CCA): allows a claim for damage to other goods, however these other goods must be of a kind ordinarily acquired for personal domestic or household use or consumption. Section 140, ACL allows a claim for damage to land, buildings or fixtures (ordinarily acquired for private use). The manufacturer has recourse to defences set out in s 142, CCA. These include: the goods were not defective when the goods left the control of the manufacturer, the goods complied with mandatory safety standards. A statutory defence of contributory negligence is also provided in s 137A, Competition and Consumer Act 2010 (Cth) (former s 75AN, TPA). Note: Exclusion clauses are void: s 150, CCA Note: manufacturers are required to provide repairs or spare parts unless the consumer is made aware that these services will not be provided: s 58, ACL

unconscionable conduct (ss.20,21 & 22 ACL; s.12CA,12CB & 12CD ASICA); and

 unfair terms in consumer contracts and standard form consumer contracts (ss.23-28 ACL; ss.12BF-12BM ASICA). Section 18 of the ACL states that a person must not, in trade or commerce, engage in conduct that is misleading and deceptive or likely to mislead or deceive. The terms "misleading" and "deceptive" are not defined in either Act, and the courts have not given a precise definition of misleading and deceptive conduct. Generally speaking however, the provisions of each Act are directed at conduct that consists of a misrepresentation of some kind. Importantly, it is not necessary to establish that the trader intended to mislead or deceive. A person or corporation may have engaged in conduct that was misleading or deceptive even if they have acted honestly and reasonably. An objective test is used to decide whether conduct is misleading and deceptive. The court will consider whether the conduct was likely to mislead or deceive members of the class or group of persons to whom the conduct was directed.
Exclusion clauses relating to the ACL

A person or corporation cannot simply rely on a disclaimer or exclusion clause against a misleading and deceptive conduct claim. However, it appears that in some circumstances, an express disclaimer that is prominently displayed may exclude liability for making misleading and deceptive statements in an advertisement. In Butcher v Lachlan Elder Realty Pty Ltd, an advertisement containing two disclaimers was held to make it sufficiently clear that the real estate agent was not the source of the information that was said to be misleading in its advertisement for a property and that it was simply passing on information supplied by others. In these circumstances, the real estate agent was held not to be liable for the misleading statements contained in the advertisement. In contrast, in Australian Competition and Consumer Commission v Telstra Corporation Limited, Telstra made various claims about its Next G mobile network, including that it had "coverage everywhere you need it". In its defence, Telstra argued that some of the advertisements directed consumers to its website, where various disclaimers about the extent of its network's coverage could be found. The court held that this disclaimer did not prevent the conduct from being misleading or deceptive, as it did not sufficiently communicate the information to potential customers.

The Electronic Transactions Act 1999(Cth) Offer and acceptance via electronic communication, as per The Electronic Transactions Act 1999(Cth). Section 14 (1) states that: "a message is sent once it enters a single information system outside the control of the of the originator." S.14(3): "if the addressee of an electronic communication has designated an information system for the purpose of receiving electronic communications then unless otherwise agreed between the parties the time of receipt of the electronic communication is when it enters that information system." S.14(4): " if the addressee of the electronic communication has not designated an information system for receiving electronic communications then unless otherwise agreed between the parties then the time of receipt of the communication is when it comes to the attention of the addressee." S.14(5)& (6): the electronic communication is deemed to be dispatched from where the originator has its place of business or if an individual their normal place of residence and the electronic communication is received