1AIssue:The issues raised inthis question is whether there was a contract formed between Avinash and theCafe and whether all elements of the contract were present.
Law:According to the Australian Consumer Law to have a validcontract between the parties, all four elements should be present in the contract.Even if a single element is missing the contract is insufficient and cannot beconsidered a contract. According to In the case of Avinash vs. Cafe to inspect whether there was a validcontract between both parties the four elements which are Offer, Acceptance, Considerationand Intention should be present. According to Causer v Brown 1952 VLR 1 the customer should be well aware of what the Offeris and how the acceptance is done. According to Thomas v Thomas (1842)2QB 851 consideration should be present there when making the contract andaccording to Carlill v Carbolic Smoke Ball Co 1893 1 QB 256 fora commercial agreement to be valid both the parties should have an intention ofbeing in a legal relation. Application:In thecase of Avinash vs. Cafe it is important to inspect whether all elements of thecontract are present or not.
For an Offer to be present there should be apromise to do something from one party in exchange for something from the otherparty. In applying the rule from Causerv Brown 1952 VLR 1 there should be a clear indication of what theoffer is and when the acceptance is done. In the case of Avinash Vs Cafethis is implied to the food offer and the acceptance of the order. When Avinash enters the cafe and seesthe items available for consumption on the self service facility that was the Offer, here when Avinash’sorders a cappuccino and a Danish pastry by using the self service facility andwaits for acceptance of his chosen items which is waiting for the ticket. Anacceptance to an offer is a definite unqualified assent which complies with theterms of the offer, also the acceptance should mirror the terms of the offer.
When Avinash chooses the items for consumption it goes straight to the counterscreen where the cafe manager checks and confirms whether this is available or whetherit can be made, after confirming the manager Accepts Avinash’s order, themoment the manager Accepts the offer Avinash’s gets the printed ticket that isthe Acceptance. Butler Machine Tool v Ex-Cell-O Corporation 1979 1 WLR401 Court of Appeal is another case ofacceptance where the principle states that both for a valid contract both parties need to accept theclauses Themost important element of a contract that should be present is Intention tocreate legal relations, applying the rule from the case Carlill vCarbolic Smoke Ball Co 1893 1 QB 256 to Avinash vs. Cafe. It can beclearly seen that both the parties had clear intention of creating legalrelations with each other. For Consideration there should be some kind ofexchange of value between the parties, Using the principle from the case Thomasv Thomas (1842)2 QB 851 here itis found that Avinash paid money in exchange of the Cappuccino and the Danishpastry and the cafe accepted the money. Conclusion:Inconclusion it can be clearly seen that there was a formation of a validcontract between Avinash and the Cafe and all the four elements were present. 1B Issue:The issue that is to be identified in this question from thecase of Avinash vs.
Cafe is whether the cafe is legally entitled to rely on theclause printed on the back of the ticket to avoid liability in relation to Avinash’sinjury. Rule:According to the Australian Consumer Law consumers guarantees for contracts which complywith the definition provided in S3 which states that:A person is a ‘consumer’ if:a) The price of goods or services does not exceed $40,000b) If price exceeds $40,000, thegoods or services are the kind normallyused forpersonal, domestic or householdpurposesFollowing the Australian Food Regulations Act 2003,the Cafewill have to pay attention towards the standards and the regulations on the useof implied food claims. The Exclusion clause which is basically a term of acontract which has the ability to limit or completely exclude the liability ofa breaching party is to be applied with respect to the 2 tests of UnsignedDocuments methods which are 1. the nature of the document test, and2.
the reasonablenotice test The tests are objective and applied sequentially inthe case of Avinash Vs Cafe where the supposedly breaching party is the Cafe. Exclusion clauses may be contained incontractual documents, printed on tickets, receipts and dockets or on signs.The distinction is important as the rules differ. According to Causer v BrownThe nature of thedocument test involves examining the docket and asking what is itsrole in the transaction? Would a reasonableperson expect it to containterms of the contract? According to the rule in Parker v South Eastern Railway The reasonablenotice test is applied ifthe court concludes that the document is a contractual document. This testinvolves examining whether reasonable steps were taken by the business operatorto bring the clause to the notice and attention of the customer.
In the case of Avinash vs. Cafe itis important to check Australian Consumer Law S23 Unfairterms of consumer contracts and small business contracts and AustralianConsumer Law S18 Misleading or deceptive conduct. Also Australian Contract Law Subdivision 4implies if any obligation comes against the quality of food and services, thenthe specific cafe or restaurant will bound to pay the compensation against it. Application:In applying Australian Consumer Law S3in the case of Avinash vs.
Cafe it can be observed that as Avinash used hismoney to purchase the Cappuccino and Danish Pastry he qualifies to be a consumer.After Avinash’s tooth was injured by eating the Danish Pastry and he went tothe manager asking for compensation for the dental repair. The manager showedhim the clause Exclusion Clause on the back of the printed ticket which excludeany liability to the cafe if a consumer is injured by consuming the cafes food.After applying the 2 tests using the principles from the precedent Causer v Brownand Parker v South Eastern Railway it can be clearlyseen that the clause was on the back of the ticket which no normal person whois waiting for food will look at and Avinash has been a frequent customer ofthe cafe and no one from the cafe ever informed the “Consumer”Avinash about any condition or clauses. The evidence against the cafe can bebacked by the Australian Consumer Law S23 ,Australian Consumer Law S18 and Australian Contract Law Subdivision 4 ConclusionIn conclusion the cafe cannot rely on the ticket to avoid liabilityin relation to Avinash injury and will have to pay the compensation to Avinash.been introduced. In addition to the context, the customer isunable to demand as a compensation of his treatment 2Introduction The Australian Consumer Law (ACL) is found under theSchedule 2 of the Competition and Consumer Act 2010.
It is applicable to thewhole region of Commonwealth of Australia to protect the consumers as well asthe business entities. This specific law has replaced different other laws on1st January 2011. The ACL has been developed to define the conduct oforganizations, the supply chain of an organization and possible acquisition bythe same. The purpose of this essay is to identify the existence of the expressterms and implied terms in the ACL.
Further the essay can help the judiciary toformulate an effective plan in order to mitigate the loopholes in thelegislation.BodyExpressterms The express term is the terms andconditions to which both the parties agree at the time of a contract. Further,an express term can be defined as the exchange of promises to which the twoparties are bound to declare either verbally or in written documents1. This means in an expresscontract, all the elements of the agreement must be clear to the relatedparties. As per the Australian court, there are different types of expressterms. The Pre-contractual statements, Incorporation of terms by course ofdealing are the major variants in the express terms types. The pre-contractualstatements means when the statement had been signed before the actual agreementsigned.
In the later time the predetermined terms and conditions should bemaintained by both the parties. In case of regular dealings, the concernedparties can insert the express terms during the process. These express termsare known as the incorporation of terms by course of dealing2. An express contract includes the buyers andagency contract, oral contract for paid gardening service, and purchase andsale contract.
In each of these terms both the parties need to aware of theinternal mandatory factors3. However, in case of implied terms, some ofthe special aspects are expected to include in the contractual agreement. Theseaspects are derived based on the inherent situation. In contrast to this, theexpress terms are to be clearly mentioned in the written document4.
This nature of the expressterms makes the same prominent in order to maintain the business’stransparency. Further, this feature of the conditions has made it mandatory asboth the parties should have the opportunity to go through it. Thus, theexpress terms are more viable than the implied terms regarding both theparties’ perception. Implied terms The implied terms are those which a courtcan expect to be included in a business contract. Further, an implied contractis the agreement which needs to be included in a contract depending on thecircumstances.
These implied terms are entitled to enable the related partiesto justify or deny a contract in case of a special occurrence. The Consumer Lawis an implied term of the Consumer Act 2010. These terms include the legalright of the seller and the legal right of the consumer as well.
As per thestatement of the Australian Court, the implied terms can be of different types.The major variants are the terms implied in law and terms implied by custom.The terms, if automatically implied in a contract, it is known as the termsimplied in law5.
In this process, theapplicability of the terms should be properly evaluated. On the other hand, theimplied terms can be customized according to the need. It is known as the termsimplied by customs. This means theseller needs to maintain the quality of the goods and the consumer shouldcooperate with that person to conduct the business well6.Variousexamples for express terms being applied in cases are Hutton v Warren (1836) 1 M& W 466 ,Hillas & Co Ltd v ArcosLtd (1932) 147 LT 503and Balmain NewFerry Co v Robertson (1906)4 CLR 379, cfHowever, the express terms need to behighlighted in the contractual document to which the two relevant partiesshould have the opportunity to review. On the contrary to this nature ofexpress terms, the implied terms are more likely to be hidden condition underthe agreement7.
Consumer GuaranteesUnder the section 4 of the Australian Consumer Law, it has been mentionedthat in an organization has not any right to promote any misleading conceptregarding any service or products8. The service providersshould display all the related information according to the product details. Itwas an implied term as the conditions are expected to meet under the particularact. This reason may make the conditions breach due to some industrialcorruption. Further, in section 18 ofthe Australian Consumer Law, it is mentioned that an organization cannotdistort key characteristics of the product to manipulate the customer’spurchasing decisions9. This is clearly stated inthe legislation as an express term.
The consumers are protected by theseregulatory guidelines from being misled by the scrupulous advertisements.Thus, it is clearly evident that thechances of a breach in case of the express terms are less than that of theimplied terms. The express terms are to be clearly mentioned in a contract tounderstand whether the terms are implied or not. This nature of the impliedterms has made it prone to breach by any of the parties. Observation In the case of Google Inc v. Australian Competition and Consumer Commission2012, ithas been observed that for some specific companies, Google has misled theConsumer Law. In this particular case, the advertisers displayed their goodsand services with the help of some sponsored links10. Further, the consumers weremisled by the sponsored links which can be considered as the breach of theconsumer law.
The prohibition of this activity is relevant to the section 52 of the Trade and Practice Act1974 as an implied term. This breach of the implied term has been performed asthe terms do not require to be mentioned clearly11.This incident has made the author notify the weakness inherent in the impliedterms. In case of breach of the particular act, the accused is liable to beconvicted by the court. The convicted person may be liable to be imprisoned upto 10 years. In addition to that the accused person is liable to provide a fineup to 210 Australian Dollar. In case of the corporate bodies, it is set quitehigher to curb the events related to breach of the act.
Thus, the author agrees that the impliedterms are more likely to breach by any of the relevant parties. Hence, theauthor also agrees with the explanations provided regarding the implied termsin this essay earlier. On the other hand, in case of ACCC v TPG Internet Pty Ltd 2014, it has been observed that theconcerned organization has manipulated the key characteristics of theirproducts to lure the customers. This event has the potential to breach theconsumers’ fundamental rights also as they are not receiving the authentic informationregarding the products12. This can also hamper the proper competition withina specified market area. Instead of the fact that the preventive actionsrelated to this event have been mentioned in express terms in the contractualagreement, it has been breached. The event of breach of the competition law canconvict a person or an organization for criminal offence. In this case, thebreach may lead to attract fine of 500000 Australian Dollar for an accusedindividual.
The corporate bodies in this types of events need to provide up to1000000 Australian dollar13. Thus, from this case, it is evident that theexpress terms are not protected against any breach properly. Hence, the authorcannot strongly agree with the idea of the express terms.Conclusion The Australian Consumer Law has two types of contractualagreement based on the nature of the stated or mentioned conditions there.These types include the express terms and the implied terms. The express termsare generally thought to be mentioned in the written document clearly whetherthe implied terms are hidden in nature.
These features are considered to definethe viability of those terms. The express terms are thought to be protectedfrom any kind of breach as it should be clearly mentioned. On the contrary tothis, the implied terms are considered to be broken due to its hidden nature. References Books:Cabey Kuzma v Better Family Trust/Better Cookies T/A Terry’sTortes and Treats 2012 7565 FWA 56Corones, Stephen G., Sharon A.
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‘Submission to AustralianConsumer Law Review Issues Paper.’ (2016).