Unfair Business and Sales Practices Assignment Sample

Business Law - Answer 1

Every consumer has a right to claim proof of their transactions. The business entity has to make available to the consumer, evidence that the transaction took place through a 'receipt' or ‘memo’ for transactions with a valuation of above $75.

The same can also be requested for lower sums as per S.100 under the ACL. The data required to be mentioned in evidence of the happening of a transaction is similar to that which is essential for compliance with the guidelines provided under the GST as regards tax invoices. Where requested by a customer, an itemised bill must also be provided for services provided to the customer as per S. 101 of the ACL.

In the present case, Bob did not request a receipt or bill after purchasing office supplies for 65$. Since the bill was for under 75$, and there was an absence of a request for a bill, Anthea cannot be said to have committed an unlawful act.

However, where Bob requests the bill within 7 days of the concerned transaction, Anthea is bound to provide the receipt, failing which would amount to a violation of the Australian Consumer Laws.

Business Law - Answer 2

There are two issues which need to be addressed in this particular question:

1. Was the contract standard form?
2. Are the terms of the contract negotiable, and can they be said to be unfair?

To address the first question, the law of Australia lacks the presence of a standard definition of a ‘standard form contract’. Nonetheless, a standard form contract, broadly speaking, is drawn up by one party to the contract and is non-negotiable among the parties. It must be accepted if accepted at all, as it is.

To decide if a contract qualifies as a standard form, courts can consider any important aspect, although it must consider if:

• Either of the parties has either all or a majority of the power to negotiate the terms and conditions about the transaction.
• The agreement was drawn up from the hands of one party before any deliberations having taken place as regards the transaction occurred between the parties.
• Another party was required to express either their admittance or rejection as regards the terms of the contract as presented to them.
• The conditions under the contract consider particular features of another party or the said particular transaction.

Considering the aforesaid requirements, it is clear that the contract under the question is a standard form.
Moving to the second question, the terms remain non-negotiable in light of the contract being standard form, and since it is offered on a ‘take it or leave it’ basis, Marc has no relief there.
However, addressing the question of the unfairness of the contract, only a court has the power to conclude if a term contained in a contract is fair. To come to such a conclusion, the authority is required to ponder upon the extent of transparency of the terms in addition to the contract in its entirety. Terms provided under the standard form contract can be deemed unfair in the following scenarios:

• They would create a considerable disparity in the parties’ rights and obligations as granted by the contract
• The terms are unreasonable and do not possess a nature of indispensability for safeguarding the genuine interests of the party advantaged from such term.
• Causing a monetary or any other sort of disadvantage to a consumer if applied or relied on.

The above facts confirm that the term about a penalty of 10% contained in the said contract was unfair. The remedy available to Marc, therefore, is to register a complaint directly to the financial services provider, and in the event of its failure to find a solution to the grievance, the Financial Ombudsman Service or the Credit and Investments Ombudsman can be approached where the dispute falls within their jurisdiction. The Securities and Investments Commission can also be directly approached.

Additionally, courts of law can also be approached to seek relief about the said unfair term. The Court must observe and conclude as regards the issues of the transparency of the agreement as well as the contract considered overall (Australian Securities & Investments Commission, 2016).

A measure of transparency relies on the following factors:

• Decipherability of the contract.
• The use of rationally plain language.
• Lear presentation.
• Availability to any party affected by the term.

Terms that are found to be opaque include ones that remain hidden under fine print or annexures, and also cover terms phrased using complex and technical language. However, a transparent term can well be found to be unfair.

The court is also required to assess if a specific term which is included in the contract when taken as a whole, qualifies as being fair, together with any further terms which may counterbalance the just nature of the term.

A potentially unjust term, therefore, may be counterbalanced through the offering of additional benefits to the other party, that is to say, a term could well be unfair in one contract and be fair concerning another agreement.

Where it is found a term in a contract is unfair, the court can make any of the following orders:

• Declaration avoiding the entirety or a part of the agreement.
• Modifying the agreement.
• Denying the applicability of a specific or all the terms of the arrangement.
• Directing the offending parties to reimburse the money or reinstate the property to the affected customer.
• Directing the offending party to provide services to the consumer affected on their expense.

Other remedies include:

• Injunctions
• Providing reparation to the affected customer.
• Order the court may find suitable.

Business Law - Answer 3

Yes, further facts are needed to address the question in its entirety. Facts such as whether the sleeping bag was used by Sebastian as per the instructions specified by the company, whether he used it properly, whether he purchased a defected piece and so on will help ascertain the liability more completely.

Nonetheless, the above facts impose partial liabilities on both, the manufacturer as well as the salesperson who recommended the “SleepDry” sleeping bags. Sebastian’s liability would depend on the additional facts mentioned above, particularly the manner of using the sleeping bag. The manufacturer's liability relies on the fact of the inability of the sleeping bag to keep Sebastian dry during his trip and missing the whole point of buying the said sleeping bag foremost.

Discussing manufacturer liability, the regulations concerned with the same are found under the “Australian Consumer Law”, which are dealt with through the Competition and Consumer Act, 2010 as well as which are reflected in the Australian Securities & Investments Commission Act, 2001 (Australian Consumer Law, 2020), come into play as regards a manufacturer who offers customizable products to the sphere of trade.

The definition of “manufacturer” includes entities who:

• Is involved in the creation or assembly of the products.
• Is involved in the importation of the said products, where he lacks an office in Australia.
• Employs his brand name concerning the products.
• Endorses themselves as the producer of the said products.
• Allows another individual to endorse the products as though they were produced by the company.

A manufacturer is required to ensure adherence to certain set standards of safety which are reasonably expected by the general public. Albeit the anticipated standard of safety is variable depending on the facts of each case, it remains in the hands of a court to finally ascertain if a good has a certain safety defect (Legal Vision Pty Ltd., 2019).

The relevance of safety defect in the given set of facts is that Sebastian wished to avoid getting wet and cold during his camping trip. Getting wet and cold exposed him to the risk of getting frostbite, or catching any other illnesses because of the cold.

When determining the presence or absence of a safety defect as concerned with a particular good, the court will evaluate the situation based on the following parameters (Australian Competition & Consumer Commission, 2020):

• The purposes for which the good was advertised.
• Packaging of the good.
• The use of any mark concerning the product.
• Instruction guidelines as well as cautions during both, product assemblage as well as usage.
• Reasonable apprehension and estimation of what might be done with the product.
• The time of supply of the product.

It can well be deduced from the above-enlisted factors that there is quite a dearth of requisite facts needed to arrive at a comprehensive answer. Only the first factor is somewhat addressed among the facts, and from the salesperson's suggestion, it can be said confidently that the bags were meant to keep the user protected from the cold and keep them dry. Since the bags failed to achieve either of the goals sought by Sebastian, there can be said to have been the presence of a safety defect in the product.

However, it is reiterated that without having seen the full picture, i.e. whether Sebastian used the bags improperly and whether the particular item was faulty when it was sold to Sebastian, it cannot conclusively be said that the liability for the haphazard was any one of the parties involved in the given set of incidents.

References for Unfair Business and Sales Practices

Manufacturer’s Liability for Goods with Safety Defects. (2019). Legal Vision Pty Ltd. https://legalvision.com.au/manufacturers-liability/

Product Safety Australia. (2020). Australian Competition & Consumer Commission. https://www.productsafety.gov.au/product-safety-laws/legislation/product-liability

The Australian Consumer Law. (2020). https://consumerlaw.gov.au/australian-consumer-law

Unfair business and sales practices. (2019). Northern Territory Government. https://nt.gov.au/law/rights/unfair-business-and-sales-practices/proof-of-transaction#:~:text=Businesses%20must%20provide%20proof%20of,seven%20days%20of%20the%20transaction.

Unfair contract term protections for consumers. (2016). Australian Securities and Investments Commission. https://asic.gov.au/about-asic/what-we-do/our-role/laws-we-administer/unfair-contract-terms-law/unfair-contract-term-protections-for-consumers/#:~:text=Meaning%20of%20'unfair',would%20benefit%20from%20its%20inclusion

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