Gilbert + tobin - Gilbert and Tobin

employment contracts), as well as contracts for the carriage of
goods by ship, a charter party of a ship and contracts for marine
salvage or towage.
Under the unfair contract term provisions, a term of a standard
form consumer contract will be void if the term is unfair. In
simplistic terms, a term will be unfair if it:
+ + would cause a significant imbalance in the parties’ rights and
obligations arising under the contract;
+ + is not reasonably necessary to protect the legitimate interests
of the party who would be advantaged by the term; and
+ + would cause detriment (whether financial or otherwise) to a
party if it were relied on.
Avoid the pitfalls: The ACL contains some examples
of unfair contract terms. However, reviewing contract
terms to establish if they are unfair terms is not a
straightforward exercise, especially given the general nature
of the legislation and lack of any real case law in this area.
Persons dealing in standard form consumer contracts
should seek advice when developing their contracts.
11.4 Consumer guarantees
The ACL also imposes consumer guarantees which provide
consumers with a statutory basis for seeking remedies where the
guarantees are not met.
A “consumer” means a person who acquires goods or services:
+ + of a kind ordinarily acquired for personal, domestic or
household use or consumption; or
+ + for $40,000 or less. This does not include the purchase of
goods for re-supply.
It is important to note that this definition is different from the
definition of “consumer contract” which defines when the unfair
terms regime applies.
In applying the $40,000 threshold, there are “unbundling”
provisions which apply. Generally speaking, individual items may be
considered separately in determining whether they fall under the
$40,000 threshold, if they are available for sale separately.
The following table summarises the consumer guarantees:
Goods
Title: guarantee that the supplier has the right to dispose of the
property in the goods
Undisturbed possession: guarantee that the consumer’s
possession of the goods will not be disturbed (except for
disclosed securities, charges or encumbrances)
Undisclosed securities: guarantee that the goods are free of
undisclosed securities
Acceptable quality: guarantee that the goods will be of
acceptable quality (except where prior disclosure of defects,
defects caused by the consumer, or prior examination ought to
have revealed the defects)
Fitness for purpose: guarantee that the goods will be fit for any
purpose disclosed by the consumer, or represented by the
supplier (except where unreasonable or no reliance on the skill
or judgment of the supplier)
Match description: guarantee that the goods will match their
description
Match sample: guarantee that the goods will match a sample or
demonstration model, the consumer will have a reasonable
opportunity to compare the goods with the sample, and the
goods are free from any defect that (i) would not be apparent
on reasonable examination, and (ii) would cause the goods not
to be of acceptable quality
Repairs and spare parts: (manufacturer only) guarantee that
repairs and spare parts will be available for a reasonable time
(except where unavailability is disclosed)
Express warranties: guarantee that any express warranty given
by a manufacturer or supplier is complied with
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