Discuss about the Consumer Rights and Guarantees.
The specific case is related to procurement of climwits by Paula. She had instructed Tess to procure 1200 pieces of that item from the designated vendor, Woddo Co. Tess had contacted the specific vendor, Woddo Co. but they had declined of supplying the same quantities of climwits due to non-availability of stock. As the need was on urgent basis, Tess had enquired about the alternative vendor of climwits in the market and had found another vendor named Sepal Co. they were ready to supply the goods as they had enough of inventories on that specific product. But they had imposed a condition of selling the same with the lot of 1400 units only at the price $ 16000 with allowable 10% discount which had made the effective price of the lot of 1400 units at $14400 with the unit price of $ 10.29 of the products subject to procurement of 1400 units at one shot. The earlier price offered by Woddo Co. to Paula was of $12000 for 1200 units which is calculated at the rate of 10 per unit. In this case of procurement of climwits by Paula the price had been increased from existing price range of $ 10 to $ 10.29 due some crisis in the market. Being desperate to have to product in regular basis, Paula has contacted Woddo Co and demanded for supplying the material with prevalent price of $12000 for 1200 units to her but the vendor had denied as they have the agreement with Tess only for the product of 1400 unit-lot at the price of $16000 less 10% discount.
Being a legal advisor, I have to assist all the three parties in the case study to guide them regarding any legal obligations raised with subsequent compliance at their end.
Paula is the prime personality in this context. She had requirement of climwits of 1200 units for $ 12000 and instructed Tess to procure the same from Woddo Co at the price and quantity specified. Although it is not clear from the case study what is the status of Tess- if she is employee of Paula or a known personality to Paula. While finding the product from Woddo Co, it was found that they were running out of stock and they were not able to supply the same then. Tess had taken initiative to find the product from the market and ultimately found Sepal CO who had a ready stock of that product but they were ready to supply the product with some other contractual agreement which they were entered with Tess and they had no identification of Paula in this transaction. They had offered the conditions to Tess with 1400 units to be procured in a lot with the price of $16000 less 10% discount which occurs to be $10.29 per unit instead of the earlier offered price Woddo Co of $ 10 per unit. The case study in nutshell is that if Paula wanted to procure the materials from Sepal Co, she had to approach through Tess only with the specific lot and price mentioned earlier (Austlii, 2012).
This case is related to the applicable act of Sales of Goods Act, 1979 and Consumers Right Act 2015. But with the provision of this act, there is nothing attributed to the right of the probable buyer. Here probable buyer is Paula who was eager to procure the goods from Sepal Co but with the price offered by her. It is the sole discretion of the seller to sale the product in the reasonable price they wish to, which should not be of abnormal in value (Duncombe, 2012).
As Paula had insisted Sepal Co to supply the goods at the price of $ 12000 for 1200 units, this condition is not as per the offer given by Sepal Co of minimum sales quantity to be ensured at 1400 units of price $16000 less 10%. Moreover, as Paula had not approached to Sepal, she had to en-route her query through Tess only. There is no such section which can defend the plea of Paula in this context (e-lawresources, 2015).
Only thing Paula can exercise is the breech of mutual trust and confidence as the precondition of employment with Tess with the context of the order of Justice Benasanko via judgment of High Court ( McHigh, Gummow, Hayne, and Heydon JJ in Koehler v Cerebos(2005) 222 CLR 44, Australian Law (maddocks;, 2015).
Tess, with her assumed status of being the employee of Paula should not enter the agreement in her name, instead that should be of the firm name of Paula. In a hurry she had made the decision and had entered into the agreement with Sepal Co for procurement of climwits in her personal name, instead she should enter into the agreement with firm name of Paula. Tess being the buyer identity had entered the agreement with Sepal Co and she should immediately refer it to Paula to make amendments of the change of name of the buyer, as it is seemed to be a Business to Business sale. To assist Tess, the justification is to be made that she had made the decision in hurry and could not find the letter of authority of Paula to make the deal, and so she had approached herself as the buyer of the product instead of Paula, as the business owner (Lexology, 2015).
The erstwhile supplier Woddo Co has no such liabilities in this context as they could not sell the product due to unavailability of stock. Moreover they had informed that to their customer Paula. Hence they are not at all a party to this and needs no legal assistance in this regard.
Sepal Co is legally in safe side in this context as they had entered into an agreement with Tess being the buyer of the said product of climwits. The law of Contract says that a perfect contract is made when there is two parties- one who offers and one who accepts which is backed by reasonable consideration. In this present context, the price and quantity had been offered by Sepal Co with subsequent acceptance by Tess. Hence while they had denied Paula of supplying the product with the lot and the price fixed by Paula, they had declined mentioning the agreement of them is with Tess in this matter and they are not going to entertain any such demand of Paula (Australiancontractlaw, 2015).
The above case has four parties- Paula as the business owner, Tess as the assumed employee, Woddo Co as the old supplier, and Sepal Co as the new supplier. In this case, there is direct difference of opinion between Paula and Sepal Co related to the supply of the goods named climwits. So far the case is diagnosed with observations, Petal Co had denied the claim of Paula for supplying climwits of 1200 no’s lot with the price of $ 12000 which Sepal Co had denied with the justification that they had entered into an agreement with Tess and had no obligation to entertain the claim of Paula in this matter. This case is related to Law of Contract, Law of Employment and Sales of Goods Act 1979 and Consumers Right Act, 2015 (Accc, 2015).
Merco, a Migrant to Australia was employed in Australia in a company as clerical assistant. He had come to Australia seven months ago. He had the problem of communication so far English knowledge is concerned. He can deliver spoken English without fluency and at the same time was lagging behind to communicate through written English. One day he had met Ted Upton in an eating place who was a representative of a publication company who were involved in publishing of journals to escalate the written English. Ted was basically a sales executive of Eddo Publishing Co, who is engaged in publication. This was a monthly magazine named English for Migrants-Beginners to advanced stage, which was being subscribed by the patrons who were willing to learn the English for their needs. The subscription is being introduced through a form of contract which is to be signed by the applicant. There were so many clauses in the agreement form (around 90) which were inserted into the agreement form and Merco had not gone through the entire set of clauses as Ted Upton had made it in hurry to get the form signed by Merco and submit to the office as a step forward to meet his sales target (Legislation, 2015).
Ted Upton had made some false statement verbally also to Merco regarding the agreement to enhance the credibility of the journal to Merco. One of them was that the teachers of the school used to take help of this journal while delivering lectures in the class. The other statement was that there were many people including the employers used to recommend the same magazine for their migrant employees to live in Australia with social and professional up-gradation, even in the field of working place. There were other misstatements also in the form of only Ted is the authority to get the subscription approved.
If Merco was not taking the decision of subscribing the magazine, he might have loose the chance of availing the best minimum price of the subscription as the price would shoot up soon and the publishers was working on the price escalation of the said magazine. Merco was bit confused about the agreement and wished to consult his lawyer to get it clarified by him. But Ted Upton had insisted in immediate signing of the form and Merco had signed the form as per the verbal commitment of Ted Upton in urgency without going through the clauses of the 10 pages application form which were part of the form of agreement. The money had been paid by Merco in reciprocation for the subscription immediately after signing the form. Later on Merco would have different thinking to come out of this agreement by not subscribing the magazine further. He had consulted the same with his colleagues and they had confirmed that this is a good magazine and would be of great use for Merco to escalate his position in social and professional life (Claytonutz, 2014).
This case study is related to Law of Contract of Australia with its implication with the clauses referred under it. The Australian Contract Law is divided into five categories:
Formation – this part is required as per the needs of a valid contract
Scope with content- this part deals in identification of contractual terms with the respective scope of them(Asic, 2016).
Avoidance- this part provides the scope through which any of the parties can come out of the contract or how any of the parties can avoid the contract.
Performance and termination- this part is highlighting the requirement for full performance of a valid contract along the conditions which may make the contract void including breech of contract(Accc, 2016).
Remedial measures- this part is covering the scope of setting out of the damages along with other remedies which may be availed by any of the two parties to combat the breech of contract by any of the party(Australiancontractlaw, 2016).
With these specific conditions for enactment of contract, the case of Marco can be advised to serve his purpose as per his requirement.
If Merco wants to come out of this contract, he can easily get this option by availing the scope of misleading or deceptive conduct as per provision of statutory remedies related to the Competition and Consumer Act 2010 (Cth) which provides better solution of the disputes related to this area. It is also provided that as per section 18 of Australian Consumer Law which is the content of schedule 2 of the Competition and Consumer Act 2010 (Cth) or erstwhile section 52 of the Trade Practices Act. This section 18 states that a person, in any case should not pass on or engage in any conduct or information in trade or commerce which is deceptive or misleading n nature. The coverage of this section is not applied in private sales but this section covers almost all commercial activity. Violation of this section through breach of contract leads to range of remedies with the areas of damages and avoidance of contract for variation(Legislation, 2010).
Refer to case law of Google Inc v ACCC –High Court of Australia (HCA 1) the deceptive and misleading facts had been reportedly projected in the search engine of Google with ‘organic’ and ‘sponsored” link with the feature of the later as paid advertisement. This advertisement is not supposed to be here due to its nature which proves to be misleading and deceptive in nature with the result of confusing the viewers. The logic behind this case was that Google was involved in misleading and deceptive conduct which is related to section 52 of the Trade Practices Act, which is now amended as section 18 of the Australian Consumer Law through the activity of displaying the web address of an advertiser as posed to be a sponsored link which had projected the name of the relevant competitor while the claim of Google was that it is nothing but a mere type of expression for the advertiser (Australiancontractlaw, 2016).
Act of misleading or deceptive conduct creates the option in the law of contract of Australia to make the contract void. It is the sole discretion of Merco if wants to continue the subscription or to break it. In the second option he has ample scope through law to get himself coming out of the contract which had been signed by Merco under the scope and provision of Section 18 of Australian Consumer Law. The Australian Law has given enough scope of combating such incidents which may originate form deceptive or misleading conduct by the person who is offering the sale.
It is mainly to serve the personal interest of Ted Upton to get his budgeted goal to be achieved for his organization, and he had adopted some unfair means by creating confusion to his customer Merco. Merco had fallen in his trap to sign the agreement which was of 10 pages and containing 90 clauses which was not possible for Merco to read and understand due to his poor knowledge in English. That situation was en-cashed by Ted Upton and for this misleading or deceptive statements, he could be sued by Merco, if he wanted to.
It is moreover found that the entire process had been forced to speed up in such a hurry, that Merco could not even take the help of his lawyer by consulting him about the agreement prior to signing the same to enter into an agreement with the publisher of the journal. Ted Upton had done such misleading or deceptive steps which made Merco invest in the matter in which he had no clear idea and he had to depend upon Ted for his action, which is not acceptable from the view point of Australian Consumer Law (Lib, 2015).
References:
Accc, 2015. Consumer rights & guarantees. [Online] Available at: https://www.accc.gov.au/consumers/consumer-rights-guarantees [Accessed 24 September 2016].
Accc, 2016. A guide to the unfair contract terms law. [Online] Available at: https://www.accc.gov.au/publications/a-guide-to-the-unfair-contract-terms-law [Accessed 24 September 2016].
Anon., 2015. Statutory implied terms – The Consumer Rights Act 2015, Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982. [Online] Available at: https://e-lawresources.co.uk/Statutory-implied-terms.php [Accessed September 2016].
Asic, 2016. Unfair contract terms law. [Online] Available at: https://asic.gov.au/about-asic/what-we-do/laws-we-administer/unfair-contract-terms-law/ [Accessed 24 September 2016].
Austlii, 2012. New South Wales Consolidated Acts. [Online] Available at: https://www.austlii.edu.au/au/legis/nsw/consol_act/soga1923128/ [Accessed 24 September 2016].
Australiancontractlaw, 2015. Australian Contract and Consumer Law. [Online] Available at: https://www.australiancontractlaw.com/ [Accessed 23 September 2016].
Australiancontractlaw, 2016. Google Inc v ACCC. [Online] Available at: https://www.australiancontractlaw.com/cases/google.html [Accessed 23 September 2016].
Australiancontractlaw, 2016. Overview of Australian contract law. [Online] Available at: https://www.australiancontractlaw.com/law.html [Accessed 23 September 2016].
Claytonutz, 2014. Doing Business in Australia: Contract law. [Online] Available at: https://www.claytonutz.com/knowledge/2014/june/doing-business-in-australia-contract-law [Accessed 24 September 2016].
Duncombe, M., 2012. UK Consumer Rights Act 2015: Seven key changes. [Online] Available at: https://www.dlapiper.com/en/australia/insights/publications/2015/10/law-a-la-mode-issue-17/uk-consumer-rights-act-2015-seven-key-changes/ [Accessed 24 September 2016].
e-lawresources, 2015. Statutory implied terms – The Consumer Rights Act 2015, Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982. [Online] Available at: https://e-lawresources.co.uk/Statutory-implied-terms.php [Accessed 23 September 2016].
Legislation, 2010. Competition and Consumer Act 2010. [Online] Available at: https://www.legislation.gov.au/Details/C2011C00003 [Accessed 23 September 2016].
Legislation, 2015. Sale of Goods Act 1979. [Online] Available at: https://www.legislation.gov.uk/ukpga/1979/54 [Accessed 24 September 2016].
Lexology, 2015. The UK Consumer Rights Act 2015 – key changes that every consumer business should be aware of. [Online] Available at: https://www.lexology.com/library/detail.aspx?g=a86e26b5-2c03-4264-9cd8-1ce16ca7532e [Accessed 24 September 2016].
Lib, 2015. Commercial law: Contract law. [Online] Available at: https://guides.lib.monash.edu/commercial-law/contract-law [Accessed 23 September 2016].
maddocks;, 2015. Breaching trust and confidence: are workplace policies the new scourge for employers? [Online] Available at: https://www.maddocks.com.au/reading-room/ealert-breaching-trust-and-confidence-are-workplace-policies-the-new-scourge-for-employers/ [Accessed 23 September 2016].
UK, L.r., 2015. contract Law. [Online] Available at: https://e-lawresources.co.uk/Contract.php [Accessed 23 September 2016].
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