LAW 1503 Lecture Notes - Lecture 2: Australian Consumer Law, Uberrima Fides, Ebay
TERMS AND INTERPRETATION
Incorporation
Express
Written
• Signature- conclusive evidence of
acceptance to incorporate terms into
agreement. Ee if the ters aret
read. L’Estrange v F Graucob; Toll v
Alphapharm.
o Electronically clickig I accept
same as signing eBay
International AG v Creative
Festival Entertainment Pty Ltd
• Incorporation by reference to a
separate doco/ webpage which you
had the opportunity to see- bound
ee if you dot read eBay
International
• Particular terms misrepresented to
signee not incorporated into
agreement Curtis v Chemical Cleaning
and Dyeing
• Terms on a receipt given after C* was
made not incorporated eBay
International
• Display and delivery (website, ticket,
sign): no signature- reasonable notice
required.
o Doco must be reasonably
expected to contain terms
Causer v Browne (not enough
to just hand receipt over,
terms must be highlighted,
could hae a sig sayig, look
at terms on back of docket.
o Notice must be given before
contract is made (Oceanic Sun
Line v Fay; eBay v Creative)
o onerous or unusual terms-
clear and specific notice
(Interfoto Picture Library).
more unusual, more notice
o Prior course of dealing:
Reasonable notice happens
through repeated dealings
▪ Doest atter if ters
are provided after the
formation of each
contract, but there
Implied
1. Fact: Ad hoc. Particular C*. unique.
• C* wholly in writing: Satisfy all five requirements
BP Refinery (Westernport)
1. Reasonable and equitable (cannot
impose significant burden on one of
the parties)
2. Necessary to give business efficacy
(implying the term is essential to
make the contract work) Regreen
Asset Holdings Pty Ltd
3. So obvious that it goes without saying
('of course it should be included')
(also applied in Codelfa)
4. Capable of clear expression (term
cannot be formulated vaguely)
5. Consistent with express terms (cannot
contradict terms of agreement)
• Not wholly in writing: Run BP test. Additional
qualification: only if the term is necessary for the
reasonable or effective operation of the contract.
Byrne v Australian Airlines Ltd
2. Law
• Common law: certain definite class of contracts
• Implied when necessary to fill a gap left in
the contract. Liverpool City Council v Irwin
• Byrne- narrow view of necessity, providing
that a term will be implied as a matter of
coo la he the ejoyet of rights
conferred by a contract would otherwise be
redered ugatory, orthless, or seriously
uderied. Applied i Commonwealth
Bank v Barker
• Common law implied terms can be excluded
by express agreement of the parties
• Examples: duty of cooperation into all C*s;
Good faith (debatable); fiduciary duties
(depends on relationship); insurance
contracts utmost good faith; discretionary
powers to be exercised honestly
• Statute: particular kind of C*- provisions on
cases page
• Sale of Goods Act 1895 (SA) ss 12–15
• Australian Consumer Law s 3, Pt 3-2 Div 1,
Pt 5-4; Pt 3-2 Div 1 Sub-div A- Goods-
Sub-div B- Services; Remedies relating to
guarantees pt 5-4
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