Wk 10 - Consumer Law

Question 1

Traditional approach of the rationale for consumer law

Answer 1

The principle that the buyer alone is responsible for checking the quality and suitability of goods before a purchase is made

Question 2

Scope of the aus consumer law (ACL)

Answer 2

. Purpose is to prevent businesses from harming consumers
. Helps you in future to help your employer comply with the law and avoid bad publicity, penalties and other
. As a consumer you can protect your own interest and pursue the remedies available to you if your rights are infringed

Question 3

Misleading or deceptive conduct

Answer 3

Section 18 (ACL): A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive
One who has suffered a loss because of this can commence legal proceedings against the business and seek remedies offered by ACL

Question 4

S18 - the intention is irrelevant

Answer 4

It doesn’t matter if the business intended to mislead/deceive/believed it was acting honeslty and reasonably. If conduct is misleading/deceptive then the business has contravened s18

Question 5

3 elements must be established before there is a contravention of s18

Answer 5

1. Business must have engaged in conduct
2. Conduct was in trade or commerce
3. Conduct was misleading or deceptive conduct or likely to mislead or deceive

Question 6

Element 1 of contravention of s18

Answer 6

. ‘Conduct’ has been given a wide meaning under the ACL

. A business engages in conduct if it makes a statement/claim/promise/silence

Question 7

Element 2 of contravention of s18

Answer 7

. Conduct must have a trading or commercial character

. Conduct that takes place in a non-commervial context (e.g. in a political/education context)

Question 8

Element 3 of contravention of s18

Answer 8

Use an objective test
.. identify the relevant section/s of the public by reference to who the question of whether the conduct is, or likely, misleading etc.
.. Matter is to he considered by reference to all who come within it
. A statement that is literally true can still be misleading/deceptive
. But a statement that is not literally true is not necessarily misleading. Courts tolerate sales puff (soft drink that makes you fly)

Question 9

Remedies

Answer 9

S232: injunction requiring the business to stop the conduct that is breaching the law

S236: damages to those suffering loss/damage as a result of the contravention

S246: orders requiring the bus to establish compliance and education programs for its employees, or disclose specified info

Question 10

Consumer guarantees

Answer 10

. ACL provides for certain consumer guarantees whenever a consumer buys goods/services
. It is a statutory term of the contract - contractual term imposed by parliament on consumer transactions
. If a good/service does not comply with any of consumer guarantees, consumer can take action to obtain a remedy - e.g. refund, replacement

Question 11

Meaning of consumer

Answer 11

S3: a consumer is anyone who acquires:
1. Any type of goods or services that cost $40,000 or less
OR
2. Goods/services costing more than $40,000 if those are normally acquired for personal, domestic or household use or consumption

Question 12

When is one not a consumer?

Answer 12

UNLESS the goods are required for the purpose of resupply OR for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production/manufacture

Question 13

The ACL implies into contracts for the SALE of goods to consumers guarantees that:

Answer 13

S54 - the goods are of acceptable quality
S55 - the goods are fit for any disclosed purpose
S56 - the goods correspond with their description

Question 14

The ACL implies into contracts for the SUPPLY of services to consumers guarantees that:

Answer 14

S60 - the services will be rendered with due care and skill

S61 - the services, and any product resulting from the services, will be fit for any disclosed purpose

Question 15

S54 - acceptable quality

Answer 15

. There is a guarantee that goods supplied are of acceptable quality
. ^ yes if:
.. fit for all the purpose for which goods of that kind are commonly supplied
.. acceptable in appearance and finish
.. free from defects
.. safe
.. durable

Question 16

When does s54 - acceptable quality - not apply?

Answer 16

S54(6) - consumer caused the goods to become of unacceptable quality

S54(7) - consumer acquiring the goods examines them before the consumer agrees to the supply of goods, and the examination ought reasonably to have revealed that the goods were not of acceptable quality

Question 17

When does S55 - fitness for disclosed purpose - not apply?

Answer 17

. If the consumer did not rely on the supplier’s skill or judgement when buying the goods
. If it was unreasonable for the consumer to do so

Question 18

S56 - correspond with description

Answer 18

Where a person supplies goods with a description, there is consumer guarantee that the goods shall correspond with that description

Question 19

S55 - fitness for disclosed purpose

Answer 19

There is a guarantee that the goods supplied are reasonably fit for any disclosed purpose

Question 20

S60 - due care and skill

Answer 20

There is a guarantee that services provided will be rendered with due care and skill

Question 21

S61 - fitness for services for a disclosed purpose

Answer 21

Where the consumer makes known to the supplier any particular purpose for which the services are being acquired by the consumer, there us a guarantee that the services and any product resulting from the services, will reasonably fit for that purpose

Question 22

S64 - non-exclusoom of guarantees

Answer 22

Signs and statements that limit, or seem to limit, consumers rights, are unlawful
.. suppliers cannot limit, restrict of excluse customer guarantees
.. cannot avoid their obligations by getting the consumer to agree that the law of another country applies to the contract or to any dispute

Question 23

Unlawful:

Answer 23

. ‘No refunds’
. ‘No refund on sale items’
. ‘Exchange or credit note only for return of sale items’

Question 24

Remedies

Answer 24

. Consumers have a right to a remedy if goods or services do not meet a consumer guarantees provided under the ACL
. Consumer can claim a remedy from the supplier of goods/services
E.g. asking for refund, asking for replacement, asking supplier to repair goods or resupply of services

Question 25

Manufacturers liability

Answer 25

. ACL imposes strict liability on manufacturers of defective goods that cause personal injury or property damage
. Strict liability means there is no need to prove negligence on the part of the manufacturer

Question 26

S9 - manufacturers liability

Answer 26

Goods have a safety defect if their safety is not such as persons generally are entitled to expect, regarding:
. The way they have been marketed
. Their packaging
. Any mark used on the goods
. Any instructions about using the goods (e.g. hair-dryer in bath)
. What might reasonably be expected to be done with the goods

Question 27

If goods have a safety defect, manufacturer may be liable to compensate:

Answer 27

S138 - individual who is injured because of safety defect

S139 - anyone other than I hired individual who suffers loss because of safety defect

S140 - anyone who used or intended to use goods damaged/destroyed because of safety defect

S141 - anyone who used or intended to use land or buildings damaged/destroyed because of safety defect