LAW 1503 Lecture Notes - Lecture 2: Australian Consumer Law, Uberrima Fides, Ebay

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TERMS AND INTERPRETATION
Incorporation
Express
Written
Signature- conclusive evidence of
acceptance to incorporate terms into
agreement. Ee if the ters aret
read. L’Estrange v F Graucob; Toll v
Alphapharm.
o Electronically clickig 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
ee if you dot 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 hae a sig sayig, 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
Doest atter if ters
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
coo la he the ejoyet of rights
conferred by a contract would otherwise be
redered ugatory, orthless, or seriously
uderied. 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 1215
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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