Vitiating Factors and the Australian Consumer Law

Vitiating Factors Duress 1) Pressure applied by stronger party to weaker parties: a) Person, or someone close to them [64:1:2] b) Property [64:1:4]; or c) Economic Interests [64:1:3]; 2) And, that pressure is illegitimate. 3) Then: contract is voidable [64:1:1] Unconscionable Dealing 1) Weaker party have special disability [65:3:2] a) eg: language (Amadio); Emotional attachment (Leahy). 2) Stronger party aware or ought to be aware; and 3) Takes advantage: then voidable: [65:3:1] Mistake as to Agreement 1) If ambiguity in words/cross-purposes 2) No objective meeting of the minds: void [65:4:2] Bilateral Mistake (1) If contract conditional on truth of fact (a) Consider circumstances: inference (2) Both parties wrong: void, unless only subjective [65-6:4:3] (3) Reluctance to treat void where relates to quality unless (a) mistake makes thing essentially different [66:4:4] Unilateral Mistake (1) If objective agreement exists, contract binding regardless of one parties subjective misapprehension of fact: [66:4:5] (a) Unconscionable? [66:4:6] Fraudulent Misrepresentation/Deceit 1) Statement 2) Untrue 3) Knows this 4) Contract made in reliance: voidable [66:5:2] 5) No contract, but loss in reliance: damages [66:5:2] Negligent Misrepresentation (1) Negligent Statement (torts, contract so not hard to show duty owed.) (2) Contract made in reliance: voidable [66:5:3] Undue Influence 1) Automatic presumption in some relationships: [64:2:2] 2) Raising Presumption. [64:2:3] Where stronger party a) was in a position of dominance, control and influence; b) usually extended to weaker parties decision making 3) If presumption, can it be rebutted: [64-5:2:3] If not voidable 4) Actual undue influence: [65:2:4] If voidable***** Innocent party must (1) Communicate their decision (2) to the other party (3) without delay after discovering facts giving rise to factor (4) Right to rescind may be lost if innocent party does anything inconsistent with intention to rescind: [66:5:4] (5) Must be possible to completely or substantially restore parties to original position (ie returning property) Australian Consumer Law Guarantees 1) Threshold (a) Consumer: s 3; [70-1:1:2]; [281] 2) Goods (see ss 519 ACL) (a) Description: [78:6:2] (b) Quality: [78:6:3] (c) Purpose: [78:6:4] (d) Samples: [78:6:5] (e) Good Title: [78:6:6] 3) Services (see ss 601 ACL) (a) Due Care and Skill: s 60 (b) Fitness for Purpose or Result: s 61 4) Remedies [79:6:9] Exclusion Clauses (1) Void to extent it excludes liability for ACL guarantees: s64 (a) Unless 64A: [300] (b) Recreational Services: s 139A of CCA (c) *** see statute pack: 2-3 Unfair Terms s 23 will render void unfair terms in standard form consumer contracts provided the contract is still capable of operating without the unfair term. (1) Consumer Contract: s 24; [75:4:2] (2) Standard Form: s 27; [75:4:2] (3) Unfair (s 24); [75:4:3] (1) significant imbalance in contractual rights and duties; (2) not reasonably necessary to protect the legitimate interests of the stronger party; and (3) if relied on would cause a financial or other determent to one of the parties: s 24 ACL. (4) Examples: s 25; [75:4:4]; [285-6] (5) Can you sever offending term? [75:4:5] Misleading and Deceptive Conduct: s 18 1) Trade or Commerce [72:2:4] 2) Conduct [72:2:2] 3) Misleading (a) Which class of persons in conduct directed at (b) Is that class likely to be mislead: [72:2:2] 4) Not necessary to show wrongdoing/carelessness (a) May be relevant to showing misleading [72:2:3] 5) Disclaimer: [72:2:3] 6) Not information providers [72-3:2:5] Other Prohibitions 1) False or misleading statements in connection with the supply of goods or services: s 29 ; [75-3:5:2] 2) Misleading conduct nature goods/services: 33-4; [76:5:4] Remedies [71:1:3] 1) Injunctions to prevent further contravention: s 232 2) Damages/Compensation for reliance ss 2368 Contract 3) Variation, termination and rescission of contract: 243

Vitiating Factors and the Australian Consumer Law