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Questions and Answers
Which characteristic identifies a term in a consumer contract as unfair?
Which characteristic identifies a term in a consumer contract as unfair?
What must the court consider when determining if a term is unfair?
What must the court consider when determining if a term is unfair?
Why was the cancellation term in the NRM Corporation case deemed invalid?
Why was the cancellation term in the NRM Corporation case deemed invalid?
In the case of NRM Corporation v ACCC, what type of contract was analyzed?
In the case of NRM Corporation v ACCC, what type of contract was analyzed?
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What is a common feature of standard form contracts?
What is a common feature of standard form contracts?
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What does the unfair terms regime imply for businesses using consumer contracts?
What does the unfair terms regime imply for businesses using consumer contracts?
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How did NRM Corporation’s term cause detriment to consumers?
How did NRM Corporation’s term cause detriment to consumers?
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Which aspect of the contract between AMI and its customers contributed to the unfairness of the terms?
Which aspect of the contract between AMI and its customers contributed to the unfairness of the terms?
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What does the unfair terms regime declare about unfair terms in standard form consumer contracts?
What does the unfair terms regime declare about unfair terms in standard form consumer contracts?
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Which of the following is a factor relevant to determining whether a term is unfair?
Which of the following is a factor relevant to determining whether a term is unfair?
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Which type of contracts are expressly excluded from the unfair terms regime?
Which type of contracts are expressly excluded from the unfair terms regime?
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Which of the following statements is true regarding terms that define the main subject matter of a contract?
Which of the following statements is true regarding terms that define the main subject matter of a contract?
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Under the doctrine of freedom of contract, how are parties generally treated?
Under the doctrine of freedom of contract, how are parties generally treated?
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Which piece of legislation provides that terms regulated by it are exempt from the unfair terms regime?
Which piece of legislation provides that terms regulated by it are exempt from the unfair terms regime?
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What is the main reason why consumers and small businesses often face unfair terms in contracts?
What is the main reason why consumers and small businesses often face unfair terms in contracts?
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Which section of the ACL defines ‘unfair’ and lists factors relevant to determining whether a term is unfair?
Which section of the ACL defines ‘unfair’ and lists factors relevant to determining whether a term is unfair?
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What makes a term of a consumer contract void according to the unfair contracts terms regime?
What makes a term of a consumer contract void according to the unfair contracts terms regime?
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What is a characteristic of a consumer contract?
What is a characteristic of a consumer contract?
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According to the content, which of the following conditions qualifies as a small business contract?
According to the content, which of the following conditions qualifies as a small business contract?
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What does the term 'standard form contract' imply?
What does the term 'standard form contract' imply?
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What should not be included in the upfront price payable under a contract?
What should not be included in the upfront price payable under a contract?
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What is the legal implication if a contract contains an unfair term?
What is the legal implication if a contract contains an unfair term?
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Which of the following is an example of an unfair term under consumer protection laws?
Which of the following is an example of an unfair term under consumer protection laws?
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Which section defines a consumer contract?
Which section defines a consumer contract?
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Study Notes
Unfair Contract Terms: Overview
- Common law historically doesn't consider fairness of contract terms
- Principle of freedom of contract, parties are bound to agreed terms
- Consumers and small businesses often lack bargaining power
- Contracts are often signed without reading
- This enables businesses to include unfair terms
Unfair Terms Regime: Overview
- Section 23 of the Australian Consumer Law (ACL) voids unfair terms in standard form consumer and small business contracts
- Section 24 defines "unfair" and provides factors for determining unfair terms
- Section 26 excludes terms defining main subject matter or upfront price from the regime
- Section 28 excludes certain contract types from the regime
Contracts Excluded From the Unfair Terms Regime: Section 28
- Section 28(1)(a): Marine salvage or towage contracts
- Section 28(1)(b): Charterparty of a ship contracts
- Section 28(1)(c): Carriage of goods by ship contracts
- Section 28(3): Contracts forming a company, managed investment scheme, or other entity
- Section 131A Australian Competition and Consumer Act 2010: Contracts supplying financial services or financial products are regulated by the Australian Securities and Investments Commission Act 2001 (Cth)
- Section 15 Insurance Contracts Act 1984 (Cth): Unfair terms regime doesn't apply to terms regulated by this Act
Terms Excluded from the Unfair Terms Regime: Section 26(1)
- Section 26(1)(a): Terms defining the main subject matter of the contract
- Section 26(1)(b): Terms setting the upfront price payable under the contract
- Section 26(1)(c): Terms required or permitted by law
A Term of a Consumer Contract is Unfair If:
- Section 24(1)(a): It causes a significant imbalance in the parties' rights and obligations
- Section 24(1)(b): It is not reasonably necessary to protect the legitimate interests of the advantaged party
- Section 24(1)(c): It causes detriment to a party if applied or relied upon
Factors to Consider When Determining Whether a Term is Unfair: Section 24(2)
- Section 24(2)(d): Transparency of the term
- Section 24(2)(e): The contract as a whole
Unfair Terms Case Example: NRM Corporation v ACCC
- NRM acquired AMI
- AMI employed doctors to prescribe AMI products and directed them to recommend 12-18 month use periods
- AMI's consumer contract included a term defining the contract length based on the doctors' recommendation
- The contract allowed cancellation with 30 days' notice but imposed a 15% cancellation fee
- The cancellation term was deemed invalid under the unfair terms regime
Reason for Invalidity: NRM Corporation v ACCC
- The contract was a consumer contract as the consumer acquired goods and services for personal use
- The contract was a standard form contract prepared by AMI and offered on a "take it or leave it" basis
- The cancellation term was considered unfair due to the significant imbalance in favor of AMI
- The term was deemed not reasonably necessary as it applied broadly and was not dependent on the reason for termination
- The cancellation fee was considered detrimental
Upfront Price: Section 26(2)
- Section 26(2)(a): Upfront price is the disclosed consideration for the contract
- Section 26(2)(b): Upfront price is disclosed at or before contract execution
- Upfront price excludes any contingent consideration
Section 23: Voiding Unfair Terms
- Section 23(1)(a): A term of a standard form consumer or small business contract is void if it is unfair
- Section 23(1)(b): The contract must be a standard form contract
- Section 23(2): The contract remains binding if it functions without the unfair term
Section 23(3): Consumer Contract
- Section 23(3): A consumer contract involves the supply of goods or services, or the sale of land, to an individual for personal, domestic, or household use.
Section 23(4): Small Business Contract (Amended November 10, 2023)
- Section 23(4)(a): A small business contract involves the supply of goods or services, or the sale of land
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Section 23(4)(b): At least one party:
- Employs fewer than 100 people and carries on a business
- OR has a turnover less than $10,000,000 for the income year preceding the contract
Standard Form Contract:
- The ACL doesn't define a "standard form contract"
- ACCC Guidelines: Standard form contracts are typically prepared by one party and not subject to negotiation, offered on a "take it or leave it" basis
Section 24: Unfair Term Definition:
- Section 24 provides a definition of "unfair term"
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Description
This quiz explores the principles and regulations regarding unfair contract terms under the Australian Consumer Law. It covers key sections, including definitions of unfairness and types of contracts excluded from scrutiny. Test your understanding of consumer rights and the legal landscape surrounding standard form contracts.