Contract and Consumer Lawyer

Describe about the Contract and Consumer Lawyer.

2.1

Section 4 of the Australian Consumer Law states that if a person makes representations of doing or refusing some act in accordance with future perspectives without any reasonable grounds, it is considered as misleading. It is the contractual liability of Philip to compensate for the damages occurred to David due to burglary in his shop. However, exclusion clauses are also a part of contract which restricts the rights of the other party (Arts Law Centre of Australia, 2016). As mentioned in the case, Philip pointed at the disclaimer written at the back of the receipt at the time of providing the receipt to David. In case of unsigned contract, if the conditions are stated in print form in the receipt provided, it comes under the contract if the conditions are brought into the attention of the other party before making the contract. Hence, he had fulfilled his responsibility of bringing the customer's attention to the exclusion clauses as mentioned in the given case.

2.2

Electronic Funds Transfer (EFT) is a consumer payment method which is increasing rapidly with the progress of electronic media. The EFT Code of Conduct regulates Electronic Funds Transfers in Australia. This Code of Conduct provides just distribution of liabilities between the consumer and the financial institution in case of illegal or disputed EFT transactions. The consumers are exposed to various risks in the EFT payment system which can be caused during the distribution of EFT cards and PINs, system related errors, or technical malfunctioning (White, 2007).

2.3

Signs stating 'No Refund' are considered as illegal under the ACL because it is implied by such signs that there is no possibility of refunds under any kind of circumstances and it might involve a defect in goods or services provided or deficiency of care and skill required. According to Australian Competition and Consumer Commission, it is illegal on behalf of any kind of businesses to show signs mentioning that no refund will be provided in any case and it includes gifts and items for sale (Australian Competition and Consumer Commission, 2016).

It is considered as illegal under the consumer law of Australia because using such signs, the retailer might take benefit in case of selling defective goods and service providers might lack the care and proficiency required by the consumers. It is held illegal by the law to limit the liability of the consumers and to provide justice to the consumers.

2.4

ASIC is a regulator of corporate sector, markets, and financial services in Australia. ASIC can take a variety of actions against a financial provider involved in an illegal conduct. Such type of conduct comes under punitive actions and the punishment involves prison terms and court orders, financial penalties under criminal law and pecuniary penalties under civil law. However, the term of imprisonment or court orders depend upon the extent of crime such as a misconduct that causes serious impact on investors or creditors or in serious market offences, the term of imprisonment might extend up to ten years. If ASIC believes after collecting sufficient evidences, that criminal offense has been committed. It refers the matter to the Commonwealth Director of Public Prosecutions (CDPP). The case is then prosecuted by the CDPP. Therefore, taking into consideration, the severity of the unlawful act done by financial service provider, ASIC can take appropriate action (Australian Securities & Investments Commission, 2013).

2.5

Being an AFS licensee holder financial advisor, Sally has not appropriately fulfilled her obligations. Under Section 912A of Corporations Act of Australia, it comes under the general obligation of a financial advisor having AFS licence that he/she should perform his/her duties efficiently, honestly, and fairly (Aust LII, 2016).

Furthermore, according to Financial Services Guide (FSG), which must have been prepared by the financial advisor, it is the duty of the financial advisor to provide all the necessary information to the client so that he can decide whether to avail the financial services or not. Knowing the fact that there are 50% chances of loss, Sally advised Harry to make the investment. It is the infringement of the Regulatory Guide 168 for financial advisors (Australian Securities and Investments Commission, 2011).

2.6.

The Electronic Transactions Act 1999 guarantees that a transaction conducted through electronic communications or electronic contracts are valid under Commonwealth legislation. This act is applicable on all the laws of Commonwealth depending upon the jurisdiction of transactions such as Federal, State or territorial (Australian Government, 2016). Law of the Commonwealth which comes under the authority of the Australian Government Parliament in some cases, operate collectively with the act and the subordinate legislation.

According to the Electronic Transactions Act, the legal requirement of a manual signature can be satisfied by using an electronic communication but it must identify the person communicated and must indicate its approval for the information provided by the person (Australian Government, 2016). This method of signature is known as electronic signature. It may vary from digital version of a written signature to biometric technology or PIN.

2.7

A signature on a contractual document are legally effective and it claims that the party signing the contract has read and implied the terms and conditions of the contract and agreed to it in the contract. It imposes legal boundation on the party signing the contract regarding the terms and conditions of the contract. However, in some specific conditions where signature has been taken unfairly and in unusual conditions, the party signing the contract would not be bound to the contract.

If one of the parties had not bothered to read the terms and conditions of the contract before signing the contract, the party would still be bound to the contract according to the provisions of the Contract law. Signing of a contract itself represents the agreement of the party to the contract (Paterson et al., 2009).

2.8

For the existence of a contract, the parties to the contract must possess contractual capacity and minors are supposed to have lack of contractual capacity in sense of susceptibility to exploitation.

Exceptional circumstances under which a contract made by a minor can be considered as valid are;

i) Contracts for necessity- This contract is binding on both the parties and the necessities refers to the existing life style of the minor which must be essential to maintain that life style.

ii) Beneficial contracts of employment- This type of contract is for the future benefits of the minor but it can be denied by the minor on getting adult (Clarke, 2013).

2.9

This clause provides the provisions under which an individual's liberty to involve in illegal trade or employment is restricted unless it is proved to be reasonable. Moreover, its reasonability must be proved in the interests of both the parties to the contract and for the public as well. In Australia, restraint of trade tends to be functional until and unless it does not clash with the Competition and Consumer Act 2010 (Australian Competition Law, 2016).

2.10

A contractual relationship can be discharged by;

i) Fulfilment of contractual obligations or performance

ii) Agreement- through mutual discharge, releasing of contract by one party, innovation, discharge by accord and satisfaction, or where strict performance is no longer essential.

iii) Operation of Law- when the agreement is considerably altered by one of the parties without the consent of the other party or by the death of either of the party.

iv) Actual or anticipatory breach of contract- when one party fails to complete the contract according to the terms of the contract or when one party denies performing their obligations regarding the contract, the innocent party is automatically released from the contract.

v) Frustration- in cases, where performance of the contract becomes impossible and neither of the party is responsible for the non-performance, both the parties are considered as discharged from the contract.

All the conditions mentioned lead to the discharge of a contract. Hence, all the options given in the question lead to the discharge of contract.

2.11

A contract can be of two types, either express or implied. In express contract, terms of the contract are expressed verbally or in written form while in implied contract, some of the terms might not be expressed through words. In determining whether a representation made by one party during negotiations comes under express or implied term of contract, court can determine it by considering;

i) If the terms and conditions are specifically agreed between the parties in written or verbally, the contract is express type of contract. For example, wages, duration of work, type of work.

ii) If the terms of the contract are implied by law or by circumstances but not in contradiction to the express terms, they are considered as implied terms of contract.

2.12

"Meeting of minds" in legal terms for the contract purposes means when both the parties to a contract understand the terms and conditions of the contract which is essential for a contract and it is proved by a written contract between both the parties. There must not be any hidden thoughts in the mind of both the parties and all the terms must be expressed in written form in the contract. It is also referred as mutual agreement between the two parties and it describes the intentions of both the parties to the contract.

References

Arts Law Centre of Australia, 2016. Disclaimers, exclusion clauses and risk warnings. [Online] Available at: https://www.artslaw.com.au/info-sheets/info-sheet/exclusion-clauses-disclaimers-and-risk-warnings/ [Accessed 2 August 2016].

Aust LII, 2016. Corporations Act 2001. [Online] Available at: http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/ [Accessed 2 August 2016].

Australian Competition and Consumer Commission, 2016. Repair, replace, refund. [Online] Available at: https://www.accc.gov.au/consumers/consumer-rights-guarantees/repair-replace-refund [Accessed 2 August 2016].

Australian Competition Law, 2016. Restraint of Trade | Overview. [Online] Available at: http://www.australiancompetitionlaw.org/law/rot/index.html [Accessed 2 August 2016].

Australian Government, 2016. E-commerce. [Online] Available at: https://www.ag.gov.au/RightsAndProtections/ECommerce/Pages/default.aspx [Accessed 2 August 2016].

Australian Government, 2016. The Electronic Transactions Act 1999. [Online] Available at: https://www.ag.gov.au/RightsAndProtections/ECommerce/Documents/ElectronicTransactionsAct1999infosheet.pdf [Accessed 2016].

Australian Securities & Investments Commission, 2013. ASIC’s approach to enforcement. Australian Securities & Investments Commission.

 

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Australian Securities and Investments Commission, 2011. REGULATORY GUIDE 168 Disclosure: Product Disclosure Statements (and other disclosure obligations). [Online] Available at: http://download.asic.gov.au/media/1240931/rg168-published-28-october-2011.pdf [Accessed 2 August 2016].

Clarke, J., 2013. Capacity to contract. [Online] Available at: http://www.australiancontractlaw.com/law/formation-capacity.html#minors [Accessed 2 August 2016].

Paterson, J.M., Robertson, A. & Duke, A., 2009. Contract: Cases and Materials. 11th ed. Thomson Reuters.

White, P., 2007. The Regulation of Electronic Funds Transfer in Australia: An Integrated Multidisciplinary Approach. Melbourne: Victoria University.