The issue in hand is to discuss whether the parties have enter into a contract or not.
For a contract’s completion, valid acceptance is needed. In normal cases, communication might be only natural way to proceed, though in such cases, even letters are preferable. As stated in the Adam v Lindsell case, it can be said that a letter of acceptance when posted by the offeree, tends to act as a valid acceptance and hence, completes the said process, not matter whether the letter has reached the offeror or not, this may include theft, misguidance and other problems.
Hence, considering what’s stated above, it can included into it that a contract is a form of agreement that is ratified by the court of law as legal, which binds the said parties in the contractual terms and conditions. The validity of a contract is based on whether it contains the following features:
As discussed previously, a contract cannot be done without having an offer and a nature[1]. The person making the contract (Offeror) must make sure that its terms and conditions are accepted by the person accepting the contract (Offeree) in all legality and acceptance of the court. If new terms are made, then such ‘Counter-Offers’ dissolves the validity of the previous terms and new ones replace them.
When compared to the letters, there are no particular laws for the use of modern Medias of communication like the email and websites. Though the messages might reach swiftly, the response time may lag or vary[2]. Hence, because of this issue related to the said timing of the response, mails are counted out, but websites providing instantaneous conversation services can be considered as a nice medium.
In the case of Entores Ltd v Miles Far East Corporation [1955], considering the advancement in the tech word, the court concluded that letters are no longer modes of instantaneous communication since, in their case, it has to be either offerer sending the offer to the offeror and then the offeror responding to them via a letter. The communication is stated incomplete if the offeree doesn’t post a letter and hence, the contract remains unfulfilled. Hence, it is necessary for the law to recognize the importance of the now modern ways tools that make communication a lot smarter than before.
The case of Chwee Kin Keong v Digilandmall.com Pte ltd [2005] SGCA 2 made it quite clear that email doesn’t only lead to occasional delaying in the communication process, but the messages sometimes remain unsent. It was stated that postal communication is the most convenient of all sources since the offeree and the offeror can rely on the postal rules, and as soon as the offeree sends his acceptance via the post, the contract becomes valid. If considering it this way, it can also be said that the in emails, the communication process in uncontrollable and the basis of it lies on a single click.
The case deals with the discussion of Mary and Lianne about organizing a party via email. The expenses were briefly overviewed by the two when Mary states that the expenses should be resolved with $10000, to which Lianne requested a drop of the rate to $9500. Mary agreed to it granted her conditions are met, which were 10% deposits of the amount in 7 days. The whole conversation was made on the 10th of June. The originally stated amount of $10000 was rewritten to the newly agreed amount of $9500.
Whenever in a contract a time period is provided, it is required by the offeree to work accordingly and pay the required amount in the way stated[3]. In the given case Lianne was to deposit a sum of $9500 in 10% installments in 7 days, which she failed to keep up with. So, since the contract wasn’t upheld, on the 20th of June, the new contract of $9500 was dissolved making the old one of $10000 valid again, to which Mary shows her acceptance via an email.
As discussed before, email can be considered an instantaneous way of communication not falling into any legislation whatsoever since all postal rules of recipient and dispatch are inapplicable in these given circumstances. The postal rules clearly state that after the dispatch of a said acceptance, the letter still remains the property of the offeree or the offeror[4]. But, as discussed earlier, an email is only subjected to a single click of a button, hence the message can be said to have been beyond the reach of the sender. Same can be said when Lianne mailed an acceptance mail to Mary, accepting the contract of $10000. Hence, their contract is bound and can be considered valid in all form.
Though, it was seen that after 30mins of confirmation, Mary decided to revoke the offer, though it cannot be possible because an offer cannot be revoked if the acceptance of revocation doesn’t arrive before the acceptance of confirmation to the offeror.
Conclusion
The offers and the acceptances made by Lianne and Mary were valid.
Can Lianne sue Mary for violation of her rights as a consumer?
The safeguard of activities, trade or commercial in Australia is headed by the Australian Consumer law (ACL), Schedule 2 to the Competition and Consumer Act 2010. It is the responsibility of the ACL to place the rights of consumers above all in the marketing of services and goods and to safeguard their guarantees[5].
Section 61 of the law mentions that the purpose of the product must be the same as the purpose that it was stated to the consumer and manufactured for in the first place. Section 62 on the hand ensures the supply of stock at the promised time limit[6].
Section 268 states that if any consumer rights or guarantees are violated by any producer, then it is punishable by law if the offence is not met and rendered and managed as soon as the offence is sighted or done. If the remedy is not applied in time, then the act will be considered as a serious flaw in the conservation of basic rights of all the consumers as stipulated before. The flaws are supposed to be rendered or else the offence is serious[7].
Such cases of the breach of the guarantees of the consumers are subjected to as damage and the said damage must be compensated by the producer, though only restricting to the damage resulting from the failure.
In the said case, Mary and Lianne organized a party on a boat where Mary had promised Lianne to keep Malaysian cuisine. Though, it was seen the food was Russian and not Malaysian and not just that, the boar was too congested to accommodate all guests in comfortably. The insufficient food supply and the lack of space for dancing made it even worse.
In this case, Mary had failed to keep up with the promises she had promised to Lianne for supplying Malaysian food and sufficient dancing space. It can be considered a breach of the above stated sections if the situations complied were actually favored by both of them[8].
The insufficiency of food and non availability of the proper cuisine along with the insufficient floor space for dancing makes it an act of breach for Mary, hence it can be said that she broke the section 62 of the ACL.
Conclusion
Lianne will get compensated for her damage resulting from the breach of consumer rights done by Mary.
It is common practice for businesses in Australia to use media sources like TV, Radio, Internet and other Medias in order to advertise them in the market but only by the acceptance of the ACL stated as in Schedule 2 of the Competition and Consumer Act 2010 as discussed in the previous section. It can be stated that that these practices have increased in the recent years through tech advancement[9].
It has been clearly stated that misrepresentation of information and false exchange of information on any media such as television, the internet and also, listening mediums like the radio, whether visual or social can be considered as an act of impeachment and breach, due to their fake or false nature[10]. Section 18 makes it very clear that such acts are to be kept unpracticed as they surely can hurt consumers in various ways which are against the consumer guarantees and the various rights of them in the society.
Such ideas force misleading concepts about the product thus making consumers favor that product more and thus creating a very partial stronghold in the market and reduce competition quite extensively and increasing search cost that the consumers so open mindedly throw away in order to get the so called best product in the market which, little do they know in the very end goes in vein as producers includes nothing in the product which was either shown in the advertisements or was promised by them in their exaggerated claims about the superiority of their product over all else.
Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013][11] strongly discussed the significance of the section 18 and how it is essential for the safeguard of the consumer guarantees and laws. The case also clarified that even ‘headlines’ can be deceiving in case of the headline advertisements despite there being disclaimers or other data that may prove otherwise[12].
It was seen in the case of TPG’s case that even with proper given data, adds can be misleading and can cause consumers to get a wrong idea only if the consumers have the misconception or a basic idea of it inside their heads this includes the consumers who followed the adds as well. A penalty is taken for the breach of the section 18 of the law if the company has done anything deceptive or may so anything of that sort in future accord to the purposes of the consumer in the ACL[13].
The ACL laws have erected provisions that refuse such unconscionable conducts in the behavior of the producer and the business which might lead to any sort of damage to the consumer or the business firm. Such misrepresentations of ads and exaggerations are just as unlawful as breaking consumer guarantees as they are one and the same as stated by the ACL[14]. Trade Practices Commission v Radio World Pty Ltd [1989][15] case stated that such deceptive acts of misrepresentation and false advertising happen in the market even with people knowing full well that such acts are at a considerable rise and are deceptive and may lead to the breach of many consumer rights and guarantees. Such activities are actively practiced or done by people who are very much aware of their doing and despite that, the purchase occurred anyhow[16] knowing the degree of their crime and the result of such breach.
From what was said above, it can be stated that the ACL is clearly against conduct that might be anti commercial or against the laws and the norms in any way. It also clearly states the rules at to not violate any consumer laws and guarantees in the first place. The ACL has stated the ill-effects of trying to portray wrong information in advertisements and its offences and states the formation of a clean market system in the society.
It is not a necessity that the consumer has to uncover all its information and lay it down for the public to see them through. But, it is expected of the producers and the businesses to lay down as much information as needed in order to portray a proper and true image of itself to the society and make sure that the disclosure closes any chance of portrayal of false information in the first place. If such information while doing business is not revealed by the seller, then it can legally be termed as an act of deceptive and misleading behavior from the business’s side.
Reference List
Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54,
Brody, Gerard, and Katherine Temple. “Unfair but not illegal: Are Australia’s consumer protection laws allowing predatory businesses to flourish?.” Alternative Law Journal 41.3 (2016): 169-173.
Corones, Stephen G., Sharon A. Christensen, and Nicola Howell. “Submission to Australian Consumer Law Review Issues Paper.” (2016).
Corones, Stephen. “Misleading premium claims.” Australian Business Law Review 44.3 (2016): 188-203.
Coteanu, Cristina. Cyber consumer law and unfair trading practices. Routledge, 2017.
Howells, Geraint, and Stephen Weatherill. Consumer protection law. Routledge, 2017.
https://www.accc.gov.au/consumers/misleading-claims-advertising/false-or-misleading-claims
Hunter, Howard. “Modern Law of Contracts.” (2017).
McKendrick, Ewan. Contract law: text, cases, and materials. Oxford University Press (UK), 2014.
Paterson, Jeannie Marie, and Gerard Brody. ““Safety Net” Consumer Protection: Using Prohibitions on Unfair and Unconscionable Conduct to Respond to Predatory Business Models.” Journal of consumer policy 38.3 (2015): 331-355.
Paterson, Jeannie Marie. “Developments in consumer protection law in Australia.” Legaldate 25.2 (2013): 2.
Pearson, Gail. “Further challenges for Australian consumer law.” Consumer Law and Socioeconomic Development. Springer, Cham, 2017. 287-305.
Poole, Jill. Textbook on contract law. Oxford University Press, 2016.
Sparks, Beverley A., et al. “Cooling off and backing out: Understanding consumer decisions to rescind a product purchase.” Journal of Business Research 67.1 (2014): 2903-2910.
Star, Dan. “Federal court: Federal court casenotes.” Proctor, The37.8 (2017): 41.
Svantesson, Dan, and Roger Clarke. “The Trade Practices Act: A Hard Act to Follow: Online Consumers and the New Australian Consumer Law Landscape.” James Cook UL Rev. 20 (2013): 85.
Trade Practices Commission v Radio World Pty Ltd [1989] 16 IPR 407
Twigg-Flesner, Christian. Consumer product guarantees. Routledge, 2017.
Tynan, Daniel. “Australian consumer law [Book Review].” Bar News: The Journal of the NSW Bar Association Summer 2015 (2015): 78.
Wee, Chiew Shi, et al. “Consumers perception, purchase intention and actual purchase behavior of organic food products.” Review of Integrative Business and Economics Research 3.2 (2014): 378.
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