Wk 10 - Consumer Law Flashcards
(27 cards)
Traditional approach of the rationale for consumer law
The principle that the buyer alone is responsible for checking the quality and suitability of goods before a purchase is made
Scope of the aus consumer law (ACL)
. 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
Misleading or deceptive conduct
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
S18 - the intention is irrelevant
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
3 elements must be established before there is a contravention of s18
- Business must have engaged in conduct
- Conduct was in trade or commerce
- Conduct was misleading or deceptive conduct or likely to mislead or deceive
Element 1 of contravention of s18
. ‘Conduct’ has been given a wide meaning under the ACL
. A business engages in conduct if it makes a statement/claim/promise/silence
Element 2 of contravention of s18
. Conduct must have a trading or commercial character
. Conduct that takes place in a non-commervial context (e.g. in a political/education context)
Element 3 of contravention of s18
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)
Remedies
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
Consumer guarantees
. 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
Meaning of consumer
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
When is one not a consumer?
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
The ACL implies into contracts for the SALE of goods to consumers guarantees that:
S54 - the goods are of acceptable quality
S55 - the goods are fit for any disclosed purpose
S56 - the goods correspond with their description
The ACL implies into contracts for the SUPPLY of services to consumers guarantees that:
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
S54 - acceptable quality
. 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
When does s54 - acceptable quality - not apply?
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
When does S55 - fitness for disclosed purpose - not apply?
. 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
S56 - correspond with description
Where a person supplies goods with a description, there is consumer guarantee that the goods shall correspond with that description
S55 - fitness for disclosed purpose
There is a guarantee that the goods supplied are reasonably fit for any disclosed purpose
S60 - due care and skill
There is a guarantee that services provided will be rendered with due care and skill
S61 - fitness for services for a disclosed purpose
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
S64 - non-exclusoom of guarantees
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
Unlawful:
. ‘No refunds’
. ‘No refund on sale items’
. ‘Exchange or credit note only for return of sale items’
Remedies
. 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
