مختصری بر متون حقوقی (حقوق قراردادها ) به کوشش سعید صالح احمدی ۴

Specific performance
Main article: Specific performance
There may be circumstances in which it would be unjust to permit the defaulting party simply to buy out the injured party with damages. For example where an art collector purchases a rare painting and the vendor refuses to deliver, the collector&#۰۳۹;s damages would be equal to the sum paid.
The court may make an order of what is called "specific performance", requiring that the contract be performed. In some circumstances a court will order a party to perform his or her promise (an order of "specific performance") or issue an order, known as an "injunction," that a party refrain from doing something that would breach the contract. A specific performance is obtainable for the breach of a contract to sell land or real estate on such grounds that the property has a unique value. In the [[United States] by way of the ۱۳th Amendment to the United States Constitution, is only legal "as punishment for a crime whereof the criminal shall be dully convicted."[۷۱]
Both an order for specific performance and an injunction are discretionary remedies, originating for the most part in equity. Neither is available as of right and in most jurisdictions and most circumstances a court will not normally order specific performance. A contract for the sale of real property is a notable exception. In most jurisdictions, the sale of real property is enforceable by specific performance. Even in this case the defenses to an action in equity (such as laches, the bona fide purchaser rule, or unclean hands) may act as a bar to specific performance.
Related to orders for specific performance, an injunction may be requested when the contract prohibits a certain action. Action for injunction would prohibit the person from performing the act specified in the contract.
Procedure
In the United States, in order to obtain damages for breach of contract or to obtain specific performance or other equitable relief, the aggrieved injured party may file a civil (non-criminal) lawsuit in state court (unless there is diversity of citizenship giving rise to federal jurisdiction). If the contract contains an arbitration clause, the aggrieved party must submit an arbitration claim in accordance with the procedures set forth in the agreement.
Many contracts provide that all disputes arising thereunder will be resolved by arbitration, rather than litigated in courts. Customer claims against securities brokers and dealers are almost always resolved by arbitration because securities dealers are required, under the terms of their membership in self-regulatory organizations such as the NASD or NYSE to arbitrate disputes with their customers. The firms then began including arbitration agreements in their customer agreements, requiring their customers to arbitrate disputes.[۷۲] On the other hand, certain claims have been held to be non-arbitrable if they implicate a public interest that goes beyond the narrow interests of the parties to the agreement (i.e., claims that a party violated a contract by engaging in illegal anti-competitive conduct or civil rights violations). Arbitration judgments may generally be enforced in the same manner as ordinary court judgments. However, arbitral decisions are generally immune from appeal in the United States unless there is a showing that the arbitrator&#۰۳۹;s decision was irrational or tainted by fraud. Virtually all states have adopted the Uniform Arbitration Act to facilitate the enforcement of arbitrated judgments. Notably, New York State, where a sizable portion of major commercial agreements are executed and performed, has not adopted the Uniform Arbitration Act.[۷۳]
In England and Wales, a contract may be enforced by use of a claim, or in urgent cases by applying for an interim injunction to prevent a breach. Likewise, in the United States, an aggrieved party may apply for injunctive relief to prevent a threatened breach of contract, where such breach would result in irreparable harm that could not be adequately remedied by money damages.
Other contract
Main article: Online contract
Online contracts, which are easily made, are usually valid on a smaller scale for a period of one to three months, while on a larger scale can last about five years. As with all things legal, especially in regards to the ever-evolving internet, general rules like length of validity have many exceptions. All cases are evaluated on their own merits, and those merits are defined by the facts presented in each instance. It is up to the owner of the site to do what it can to guarantee enforceability of its contracts. Though ۹۰% of people sign online contracts before reading the content[citation needed], E-signature laws have made the electronic contract and signature as legally valid as a paper contract. It has been estimated that roughly one hundred and ten electronic contracts are signed every second.
Contractual theory
Main article: Contract theory
Contract theory is the body of legal theory that addresses normative and conceptual questions in contract law. One of the most important questions asked in contract theory is why contracts are enforced. One prominent answer to this question focuses on the economic benefits of enforcing bargains. Another approach, associated with Charles Fried, maintains that the purpose of contract law is to enforce promises. This theory is developed in Fried&#۰۳۹;s book, Contract as Promise. Other approaches to contract theory are found in the writings of legal realists and critical legal studies theorists.
More generally, writers have propounded Marxist and feminist interpretations of contract. Attempts at overarching understandings of the purpose and nature of contract as a phenomenon have been made, notably &#۰۳۹;relational contract theory&#۰۳۹; originally developed by U.S. contracts scholars Ian Roderick Macneil and Stewart Macaulay, building at least in part on the contract theory work of U.S. scholar Lon L. Fuller, while U.S. scholars have been at the forefront of developing economic theories of contract focussing on questions of transaction cost and so-called &#۰۳۹;efficient breach&#۰۳۹; theory.
Another dimension of the theoretical debate in contract is its place within, and relationship to a the wider law of obligations. Obligations have traditionally been divided into contracts, which are voluntarily undertaken and owed to a specific person or persons, and obligations in tort which are based on the wrongful infliction of harm to certain protected interests, primarily imposed by the law, and typically owed to a wider class of persons.
Recently it has been accepted that there is a third category, restitutionary obligations, based on the unjust enrichment of the defendant at the plaintiff’s expense. Contractual liability, reflecting the constitutive function of contract, is generally for failing to make things better (by not rendering the expected performance), liability in tort is generally for action (as opposed to omission) making things worse, and liability in restitution is for unjustly taking or retaining the benefit of the plaintiff’s money or work.[۷۴]
The common law describes the circumstances under which the law will recognise the existence of rights, privilege or power arising out of a promise.
See also
• Contract (conflict)
• Contract Automation
• Contract of sale
• Contract theory
• Contracting
• Contractual clauses
• Design by contract
• English contract law
• Estoppel
• Ethical implications in contracts
• Force majeure
• Gentlemen&#۰۳۹;s agreement
• Good faith
• Implicit contract
• Indenture
• Invitation to treat
• Memorandum of understanding
• Negotiation
• Option contract
• Order (business)
• Peppercorn (legal)
• Perfect tender rule
• Quasi-contract
• Remedy
• Specification (technical standard)
• Standard form contract
• Stipulation
• Voidable contract

References
Bibliography
• Ewan McKendrick, Contract Law - Text, Cases and Materials (۲۰۰۵) Oxford University Press ISBN ۰-۱۹-۹۲۷۴۸۰-۰
• P.S. Atiyah, The Rise and Fall of Freedom of Contract (۱۹۷۹) Clarendon Press ISBN ۰۱۹۸۲۵۳۴۲۷
• Randy E. Barnett, Contracts (۲۰۰۳) Aspen Publishers ISBN ۰-۷۳۵۵-۶۵۳۵-۲
Notes
۱. ^ Sullivan, arthur; Steven M. Sheffrin (۲۰۰۳). Economics: Principles in action. Upper Saddle River, New Jersey ۰۷۴۵۸: Pearson Prentice Hall. pp. ۵۲۳. ISBN ۰-۱۳-۰۶۳۰۸۵-۳. http://www.pearsonschool.com/index.cfm?locator=PSZ۳R۹&PMDbSiteId=۲۷۸۱&PMDbSolutionId=۶۷۲۴&PMDbCategoryId=&PMDbProgramId=۱۲۸۸۱&level=۴.
۲. ^ Hans Wehberg, Pacta Sunt Servanda, The American Journal of International Law, Vol. ۵۳, No. ۴ (Oct., ۱۹۵۹), p.۷۷۵.
۳. ^ e.g. In England, s. ۵۲, Law of Property Act ۱۹۰۰
۴. ^ [۱۸۹۳] ۲ QB ۲۵۶
۵. ^ [۱۹۶۸] ۱ WLR ۱۲۰۴
۶. ^ [۱۹۶۱] ۱ QB ۳۹۴
۷. ^ [۱۹۵۳] ۱ QB ۴۰۱
۸. ^ (۱۸۷۰-۷۱) LR ۶ QB ۵۹۷
۹. ^ R. Austen-Baker, &#۰۳۹;Gilmore and the Strange Case of the Failure of Contract to Die After All&#۰۳۹; (۲۰۰۲) ۱۸ Journal of Contract Law ۱
۱۰. ^ e.g. Lord Steyn, &#۰۳۹;Contract Law: Fulfilling the Reasonable Expectations of Honest Men&#۰۳۹; (۱۹۹۷) ۱۱۳ LQR ۴۳۳; c.f. § ۱۳۳ BGB in Germany, where "the actual will of the contracting party, not the literal sense of words, is to be determined"
۱۱. ^ Restatement (Second) of Contracts § ۳۲ (۱۹۸۱) (emphasis added)
۱۲. ^ law.com Law Dictionary
۱۳. ^ e.g. In Germany, § ۳۱۱ BGB
۱۴. ^ For a detailed and authoritative account of this process, see A.W.B. Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit, (OUP: Oxford, ۱۹۷۵).
۱۵. ^ The rule in Pinnel&#۰۳۹;s case - Foakes v Beer (۱۸۸۴) ۹ App Cas ۶۰۵
۱۶. ^ Chappell & Co Ltd v. Nestle Co Ltd [۱۹۵۹] ۲ All ER ۷۰۱.
۱۷. ^ Eastwood v. Kenyon (۱۸۴۰) ۱۱ Ad&E ۴۳۸
۱۸. ^ Austotel v. Franklins (۱۹۸۹) ۱۶ NSWLR ۵۸۲
۱۹. ^ e.g. P.S. Atiyah, &#۰۳۹;Consideration: A Restatement&#۰۳۹; in Essays on Contract (۱۹۸۶) p.۱۹۵, Oxford University Press
۲۰. ^ Central London Property Trust Ltd. v. High Trees House Ltd. [۱۹۴۷] KB ۱۳۰
۲۱. ^ Balfour v. Balfour [۱۹۱۹] ۲ KB ۵۷۱
۲۲. ^ Merritt v. Merritt [۱۹۷۰] ۲ All ER ۷۶۰; [۱۹۷۰] ۱ WLR ۱۲۱۱; CA
۲۳. ^ in Australia it is known as the Sales of Goods Act in most states, and in Victoria the Goods Act ۱۹۵۸
۲۴. ^ L&#۰۳۹;Estrange v. Graucob [۱۹۳۴] ۲ KB ۳۹۴
۲۵. ^ Curtis v. Chemical Cleaning and Dyeing Co [۱۹۵۱] ۱ KB ۸۰۵
۲۶. ^ Balmain New Ferry Company Ltd v. Robertson (۱۹۰۶) ۴ CLR ۳۷۹
۲۷. ^ Fry v. Barnes (۱۹۵۳) ۲ D.L.R. ۸۱۷ (B.C.S.C)
۲۸. ^ Hillas and Co. Ltd. v. Arcos Ltd. (۱۹۳۲) ۱۴۷ LT ۵۰۳
۲۹. ^ Whitlock v. Brew (۱۹۶۸) ۱۱۸ CLR ۴۴۵
۳۰. ^ Three Rivers Trading Co., Ltd. v. Gwinear & District Farmers, Ltd. (۱۹۶۷) ۱۱۱ Sol. J. ۸۳۱
۳۱. ^ Martin, E [ed] & Law, J [ed], Oxford Dictionary of Law, ed۶ (۲۰۰۶, London:OUP).
۳۲. ^ Jamie Wodetzki, "Boilerplate that Bites: The Arbitration Clause", ۲۰۰۶
۳۳. ^ Tina L. Stark, Negotiating and Drafting Contract Boilerplate, (ALM Publishing ۲۰۰۳, pp.۵-۷). ISBN ۹۷۸۱۵۸۸۵۲۱۰۵۷
۳۴. ^ Not to be confused with a product warranty, which is always referred to as a &#۰۳۹;guarantee&#۰۳۹; in law.
۳۵. ^ Poussard v. Spiers and Pond (۱۸۷۶) ۱ QBD ۴۱۰
۳۶. ^ Bettini v. Gye (۱۸۷۶) ۱ QBD ۱۸۳
۳۷. ^ As added by the Sale of Goods Act ۱۹۹۴ s۴(۱).
۳۸. ^ [۱۹۶۲] ۱ All ER ۴۷۴
۳۹. ^ Maredelanto Compania Naviera SA v Bergbau-Handel GmbH. The Mihalis Angelos [۱۹۷۰] ۳ All ER ۱۲۵.
۴۰. ^ [۱۹۷۶] ۳ All ER ۵۷۰
۴۱. ^ (۱۸۶۱) ۱۰ CBNS ۸۴۴
۴۲. ^ [۱۹۲۷] AC ۱۷۷
۴۳. ^ (۱۹۷۷) ۱۸۰ CLR ۲۶۶
۴۴. ^ Byrne and Frew v. Australian Airlines Ltd (۱۹۹۵) ۱۸۵ CLR ۴۱۰
۴۵. ^ [۱۹۹۵] EMLR ۴۷۲
۴۶. ^ [۱۹۹۵] EMLR ۴۷۲ at ۴۸۱
۴۷. ^ (۱۸۸۹) ۱۴ PD ۶۴
۴۸. ^ [۱۹۳۹] ۲ KB ۲۰۶
۴۹. ^ [۱۹۱۸] ۱ KB ۵۹۲
۵۰. ^ [۱۹۷۶] ۲ WLR ۵۶۲
۵۱. ^ [۱۹۹۵] ۴ All ER ۷۴۵
۵۲. ^ Gordon v. Selico (۱۹۸۶) ۱۸ HLR ۲۱۹
۵۳. ^ Bisset v Wilkinson and others [۱۹۲۷] AC ۱۷۷
۵۴. ^ Esso Petroleum Co Ltd v Mardon [۱۹۷۶] ۲ Lloyd&#۰۳۹;s Rep. ۳۰۵
۵۵. ^ Bell v. Lever Brothers Ltd. [۱۹۳۱] ALL E.R. Rep. ۱, [۱۹۳۲] A.C. ۱۶۱
۵۶. ^ Raffles v. Wichelhaus (۱۸۶۴) ۲ Hurl. & C. ۹۰۶.
۵۷. ^ Smith v. Hughes [۱۸۷۱]
۵۸. ^ Lewis v. Avery [۱۹۷۱] ۳ All ER ۹۰۷
۵۹. ^ Black&#۰۳۹;s Law Dictionary (۸th ed. ۲۰۰۴)
۶۰. ^ Barton v. Armstrong [۱۹۷۶] AC ۱۰۴
۶۱. ^ Johnson v. Buttress (۱۹۳۶) ۵۶ CLR ۱۱۳
۶۲. ^ see in the UK e.g. s.۳(۲) Sale of Goods Act ۱۹۷۹
۶۳. ^ Royal Bank of Canada v. Newell ۱۴۷ D.L.R (۴th) ۲۶۸ (N.C.S.A.)
۶۴. ^ Tenet v. Doe, ۵۴۴ U.S. ۱ (۲۰۰۵).
۶۵. ^ [۱۹۱۵] AC ۷۹ at ۸۶ per Lord Dunedin.
۶۶. ^ (۱۹۵۱) ۸۴ CLR ۳۷۷
۶۷. ^ [۱۹۷۲] ۱ QB ۶۰
۶۸. ^ M.P. Furmston, Cheshire, Fifoot & Furmston&#۰۳۹;s Law of Contract, ۱۵th edn (OUP: Oxford, ۲۰۰۷) p.۷۷۹.
۶۹. ^ M.P. Furmston, Cheshire, Fifoot & Furmston&#۰۳۹;s Law of Contract, ۱۵th edn (OUP: Oxford, ۲۰۰۷) p.۷۷۹ n.۱۳۰.
۷۰. ^ [۱۹۸۳] ۱ Lloyd&#۰۳۹;s Rep ۶۰۵.
۷۱. ^ "۱۳th Amendment to the United States Constitution". http://www.law.cornell.edu/constitution/constitution.amendmentxiii.html. Retrieved on ۲۰۰۸-۱۰-۱۰.
۷۲. ^ Introduction to Securities Arbitration - an Overview from SECLaw.com the online leader in securities law news, information and commentary
۷۳. ^ New York Civil Procedure Law and Rules § ۷۵۰۱, et seq.
۷۴. ^ Beatson, Anson’s Law of Contract (۱۹۹۸) ۲۷th ed. OUP, p.۲۱


Overview

This section contains a brief overview of Australian contract law and links to key cases and legislation.
Australian contract law can be broadly divided into the five sections listed to the left.
Formation
A contract is a promise or a set of promises that is legally binding. In this context a promise is an undertaking by one person to do something or refrain from doing something if another person does something or refrains from doing something or makes a promise in return. A promise or set of promises will be legally binding if certain criteria are met. In Australia this requires that there be an agreement (comprising an offer and acceptance), consideration, intention to create legal relations, compliance with any legal formalities and that the parties have the legal capacity to contract.
Click here for more information about contractual formation
Scope and Content
A contract is generally only enforceable by and against parties to the contract. This section considers the issue of privity of contract.
This section also considers the content of a contract; once formed, how do you determine what the terms of the contract are? How should the various terms by classified and how should they be interpreted in cases of ambiguity? Exclusion clauses are given special attention here.
Click here for more information about the scope and content of contracts
Avoidance / Vitiating Factors
A contract validly formed may nevertheless be avoided as a result of a number of possible &#۰۳۹;vitiating factors&#۰۳۹;. Most of these involve some form of unfair or unconscionable dealing by one of the parties.
Click here for more information about avoidance/destruction
Performance and Termination
Most contracts come to a natural end as a result of the parties performing their respective obligations. The requirements for &#۰۳۹;performance&#۰۳۹; to discharge contractual obligations are discussed in this section. A contract may also come to an end by agreement between the parties or as a result of the breach of contract by one of the parties. Finally, a frustrating event might prevent parties from performing as planned and this may have the effect of terminating a contract.
Click here for more information about performance and termination
Remedies
Where a breach of contract has occurred the non-breaching party is entitled to remedies; in particular, they are entitled to damages as a matter of right. The procedures for determining the extent of damages available are discussed in this section. Parties may also make provision in their contract for the payment of a liquidated sum upon breach; the effect of these clauses will be discussed.
In addition to common law remedies, parties may seek the equitable remedies of specific performance or injunctions for contractual breach (or threatened breach) - these are not available as a matter of right but are awarded at the discretion of the court

Unfair terms … narrower than planned
Posted by Julie Clarke on ۲ July ۲۰۰۹
The Trade Practices (Australian Consumer Law) Bill ۲۰۰۹ was introduced into Parliament last week and contains the new unfair terms laws which, if passed, will enter into force on ۱ January ۲۰۰۹. They are, however, considerably watered down from the original proposed unfair terms laws.
The original draft prohibited all unfair terms in standard form contracts – whether goods or services were to be supplied to individuals or businesses. Then Chris Bowen announced some modifications as a result of ‘consultation’ – suddenly there was to be a ‘threshold’ of $۲m, above which the laws would not apply. The bill, however, curtails the law significantly – according to the new law, the unfair terms provisions apply only to consumer contracts, defined as contracts for ‘(a) a supply of goods or services; or (b) a sale or grant of an interest in land; to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.’
Wow. What a change. The law is now NARROWER than the existing unfair terms law in Victoria; Victoria restricts the unfair terms prohibitions to consumer contracts, defined in a similar manner to that described above BUT it applies to ALL consumer contracts, not just standard form contracts.
There was no clear announcement of this monumental back-down on the breadth of the federal unfair terms law. At least not until last week’s second reading speech by Dr Craig Emerson, where he stated (my emphasis):
“We have consulted, and we have listened. And this is reflected in the provisions set out in this bill, which differ in key respects from those that the government exposed in May, particularly in respect of the exclusion of business-to-business transactions.
In relation to the question of whether business-to-business contracts—and particularly those involving small businesses—should be included under the unfair contract terms provisions, the government is currently reviewing both the unconscionable conduct provisions of the Trade Practices Act and also the Franchising Code of Conduct.
Both of these reviews cover issues relating to the protections afforded to businesses in circumstances where they are dealing with other businesses with greater bargaining power and market power. In responding to these reviews, the government is seeking the views of businesses—large and small—about the effectiveness of our current laws. The government will further consider this issue when these reviews are completed.
The government has also indicated its intention that this bill should be referred to a senate committee, and this issue will—no doubt—be further considered as part of that process.”
So,the breadth may possibly expand again … we await yet another senate review (let’s hope it’s better than the last one dealing with cartels … maybe they will demonstrate some understanding of this law … then again, that might be being a tad optimistic).
I don’t really have much difficulty with the law being limited to consumers; it is consumers who are most likely to purchase in bulk using standard forms without reading their contracts or, even if they did, without having any bargaining power to make changes to blatantly unfair terms. But this is quite a monumental change from the original draft provisions which captured ALL standard form contracts and a more adequate explanation from the government about the reasons for this change is needed.
See also the Government’s Australian Consumer Law Home Page.
Posted in Unfair Terms | Tagged: Unfair Terms | Leave a Comment »
Trade Practices (Australian Consumer Law) Bill ۲۰۰۹
Posted by Julie Clarke on ۲۴ June ۲۰۰۹
The Trade Practices (Australian Consumer Law) Bill ۲۰۰۹ was introduced into Parliament today. A second Bill will be introduced in ۲۰۱۰ to complete the move to a single national consumer law.
See Dr Craig Emerson’s Press Release.
See also the Government’s Australian Consumer Law Home Page.
More details to follow
Posted in Consumer Protection | Tagged: australian consumer law | Leave a Comment »
Franchising Code of Conduct Options Paper Released
Posted by Julie Clarke on ۲۱ June ۲۰۰۹
Today the government released an options paper, seeking comment on proposed amendments to the Franchising Code of Conduct. This is part of the government’s response to the report of the Parliamentary Joint Committee on Corporations and Financial Services inquiry into franchising (which the options paper states was tabled on ۱ December ۲۰۰۹ – only a year out!) and follows earlier consultations on the issue.
The ۱۶-page paper notes the four broad areas in need of regulatory reform that were identified by the Joint Committee’s report:
• “Issues impacting on franchisees in the event of franchisor failure (Recommendations ۱ and ۴).
• Establishment of a registration system for franchise businesses and collection of data on the franchising sector (Recommendation ۲ and Recommendation ۷).
• End of term arrangements (Recommendation ۵).
• Insertion of a good faith clause into the Franchising Code (Recommendation ۸).”
The paper provides background and brief discussion of each and then puts forward a series of questions for comment. In releasing the options paper, Emerson noted that the Government was “particularly interested in any potential change to the code that may affect costs and risks faced by franchisors and franchisees”
The closing date for comment is ۱۰ July ۲۰۰۹
See Press Release by Dr Craig Emerson
Posted in Franchising, Reports and Inquiries | Tagged: craig emerson, Franchising, franchising code of conduct, options paper | Leave a Comment »
Craftmatic’s salespersons misled and unfairly pressured Senior Citizens
Posted by Julie Clarke on ۱۹ June ۲۰۰۹
Craftmatic, which sells adjustable beds, has agreed to court declarations and injunctions against it relating to its door-to-door sales tactics with Senior Citizens. Craftmatic admitted misleading and deceiving elderly consumers and unfairly pressuring them into purchasing a bed between ۲۰۰۵ and ۲۰۰۸. Tactics included
* when initiating contact, stating that their purpose was not to sell them anything, but that they could win a free bed, when their sole interest was “to convince the consumer to agree to a presentation where the representative would try to make a sale”
* advising consumers the presentation would take no more than an hour when most took between two and three hours
* bringing cake or other gifts to a consumer’s home before asking questions. Questions included health questions which consumers were told was to assist in determining an appropriate model of bed for their needs – in fact there was only one model of bed at the time
* where customers were reluctant to buy, offering discounts described as ’special’ or ‘limited’ or only available that day when this was not the case.
* where the consumer said they could not afford to purchase a bed they would try to sell the bed on credit
and more …
See ACCC Press Release.
Posted in Advertising, Consumer Protection, Misleading Conduct | Tagged: door-to-door sales, Misleading Conduct, Unconscionable Conduct, unfair conduct | Leave a Comment »
Unfair Terms – Next Step Toward National Unfair Terms Law
Posted by Julie Clarke on ۵ June ۲۰۰۹
Consumer Affairs Minister, Chris Bowen, today released a press release outlining further details for the implementation of national unfair term laws. This follows the May ۲۲ closing date for submissions on the draft legislation which has led to possible refinements that would set a threshold limit for the application of the laws of $۲m and exclude standard form shipping contracts in some cases. This is in contrast to the draft which would have applied to ALL standard form contracts regardless of the value of the goods or services involved.
The Government will now refer the legislation to the Senate Economics Committee (let’s hope they do a better job than they did on the criminal cartel laws) which will provide a further opportunity for community and business input (this will be at least the third formal opportunity for input into the development of these laws)
Posted in Consumer Protection, Reports and Inquiries, Unfair Terms | Leave a Comment »
Component pricing laws having an impact
Posted by Julie Clarke on ۳۰ May ۲۰۰۹
The new clarify of pricing requirements for business commenced on ۲۵ May (see section ۵۳C of the Trade Practices Act). These requirements deal with how business may use ‘component pricing’ (specifying the price for each part of a good or service separately) when advertising their products and their impact is clear; today’s ‘Cars Guide’ in my local paper now list the price of every car as ‘drive away’. This is in stark contrast to the same guide a week ago. Finally, companies are prevented from ‘hiding’ prices with ridiculous little asterisks or vague references to registration or delivery costs (although I do notice some mobile phone websites do not seem to comply yet … I’ll be keeping an eye on them!).
See my blog of ۵ May for details about the new laws. Briefly, while the new laws permit ‘component prices’, they require that the full price will be prominently displayed (at least as prominently as any component price listed).
Posted in Advertising, Consumer Protection | Leave a Comment »
Budget allocation for National Product Safety Framework
Posted by Julie Clarke on ۱۳ May ۲۰۰۹
Predictably, following the budget release, Assistant Treasurer Chris Bowen MP issued a long series of press released; the first was ‘Next Step Toward a National Product Safety Framework‘.
In this release, he notes that the budget allocates $۲۴.۸ million over five years to the ACCC to implement and administer the new national consumer product safety framework. COAG agreed, in July ۲۰۰۸, to ‘create a single national product safety law with joint and consistent enforcement by Commonwealth and State and Territory regulators’ with the ACCC responsible for leading the enforcement.
The new national product safety framework will be in operation by the end of ۲۰۱۰.
Posted in Product liability | Tagged: national product safety framework | Leave a Comment »
Unfair Terms Consultation
Posted by Julie Clarke on ۱۱ May ۲۰۰۹
Chris Bowen MP is at it again releasing yet another consultation paper – this time on Unfair Terms in Consumer Contracts. It is titled: The Australian Consumer Law: Consultation on draft provisions on unfair contract terms. The consultation paper contains a Draft Bill – the ‘Trade Practices Amendment (Australian Consumer Law) Bill ۲۰۰۹: Unfair and prohibited contract terms. The plan is to introduce legislation in June ۲۰۰۹ with the prohibition to commence on ۱ January ۲۰۱۰. This will be the first Bill implementing part of the Australian Consumer Law (ACL) – a second bill implementing the bulk of the ACL will be introduced in early ۲۰۱۰.
The new law will prohibit unfair terms in standard form contracts (not limited to ‘consumer’ contracts) and provide remedies where the claimant can show detriment or substantial likelihood of detriment to the consumer. A term will be deemed unfair ‘when it causes a significant imbalance in the parties’ rights and obligations arising under the contract and it is not reasonably necessary to protect the legitimate list interests of the supplier’ – a ‘grey-list’ of types of terms that might be considered unfair will be included.
Victoria has already had unfair terms legislation for some time. This legislation will in some ways water down the existing Victorian provisions (which will be repealed when the ACL enters force). The Victorian provisions apply to all ‘consumer contracts’ (defined narrowly in the Fair Trading Act for purposes of unfair terms provisions) not just to standard form contracts.
However, in some respects the new law will be broader than the Victorian law. First, it is not restricted to ‘consumer’ contracts. Second, it will not contain a reference to ‘good faith’, which does form part of the Victorian definition of an unfair term and has caused some confusion and potentially limited the scope of the prohibition. The Victorian definition states (in s ۳۲W): ‘A term in a consumer contract is to be regarded as unfair if, contrary to the requirements of good faith and in all the circumstances, it causes a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer.’ The Productivity Commission originally recommended retaining the ‘good faith’ reference, but the current model, adopted by the MCCA removes the requirement because of the ‘uncertain application of the principle at common law’. UPDATE: Note that legislation passed earlier this year (assented to on ۱۰ June) has removed the good faith element from the Victorian unfair terms provision.
The proposed definition of unfair term in a standard form contract is one that ‘would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term’.
In many other respects the draft bill is remarkably similar to the Victorian unfair terms legislation.
The consultation paper also details how the Australian Consumer law will operate. It notes that the ‘National Partnership Agreement to Deliver a Seamless National Economy (NPA) commits all Australian governments to pass legislation to implement a national consumer law by the end of ۲۰۱۰′. Like the national competition policy, the TPA will be amended to create a schedule including the ACL and provide for jurisdiction of the courts, modification of the ACL etc. The states and territories will introduce legislation to apply the ACL as part of their laws and make modifications to give effect to the ACL, ‘including repealing existing provisions which deal with matters under the ACL’.
The consultation paper calls for submissions and comments generally on the draft unfair contract terms provisions – it doe snot ask any specific questions. Submissions close on ۲۲ May (less than a fortnight to comment!)
See Press Release.
Posted in Consumer Protection, Reports and Inquiries, Unfair Terms | Tagged: austrlian consumer law, Unfair Terms | ۱ Comment »
Progress toward Australian Consumer Law
Posted by Julie Clarke on ۸ May ۲۰۰۹
It’s all happening in consumer law this week.
Today Chris Bowen announced that the Ministerial Council on Consumer Affairs, which met today in Hobart, has made important progress toward implementing an Australian Consumer Law (ACL) by the end of ۲۰۱۰. In particular, the Council ‘endorsed the text for an Intergovernmental Agreement (IGA) to underpin the new Australian consumer law and policy framework’, key features of which include:
• how the ACL will be implemented
• the contents of the ACL
• procedures for amending the ACL
• arrangements for administering and enforcing the ACL
• need for inter-agency MOU and national guidance on some issues
• relations with NZ
Bowen also launched a new Product Safety Recalls website (part of the ACCC site) today as part of a move toward a single national consumer product safety system, planned for the end of ۲۰۱۰. This is designed to make it easier for consumers to find informaiton about unsafe and recalled goods.
Posted in Consumer Protection, Product liability, Reports and Inquiries | Tagged: australian consumer law, product safety | ۱ Comment »
Consumer advocacy and research issues paper released
Posted by Julie Clarke on ۸ May ۲۰۰۹
Chris Bowen MP today released another issues paper : Consumer Voices: Sustaining Advocacy and Research in Australia’s New Consumer Policy Framework.
This ۳۰ page report outlines the Government’s approach to consumer policy and support for consumer advocacy and consumer policy research. Submissions in relation to the paper are welcome, particularly on the following issues:
Consumer advocacy
‘• the effectiveness of existing institutional frameworks for consumer advocacy …
• ways in which support for consumer advocacy can be facilitated and improved;
• the effectiveness of Australian Government consumer policy consultation processes, and whether other mechanisms for making consumer views known to governments might be more effective; and
• the effectiveness of existing government support … for consumer advocacy, and ideas as to how such support can more effectively be sustained through the medium to long term.
Consumer policy-focused research
‘• current gaps in the consumer policy evidence in Australia;
• approaches to provide an effective mix of advocacy-focused, and objective qualitative and quantitative, consumer policy research; and
• the effectiveness of existing government support … consumer policy-focused research, and ideas as to how such support can more effectively be sustained through the medium to long term.’

سعید صالح احمدی
منابع و مآخذ
• Australian Contract Law
• Behavioral Contracting in the Classroom
• Contract Law Lessons & Materials by Max Young
• Cornell Law School contracts: an overview
• Principles of European Contract Law
• United Nations Convention on Contracts for the International Sale of Goods, Vienna, ۱۱ April ۱۹۸۰
و کتاب GCSE LAW
و جزوه متون حقوقی قراردادها از سعید صالح احمدی