Discuss About The Mislead Consumer Guarantee Representations.
In case of written contracts, the rights and the obligations of the parties to the contract are provided as express terms. Examples of terms include negotiation of sale, stipulated price for the fulfilment of the promise (McKendrick, 2014). Terms of a written contract can be categorized in conditions, warranties and intermediate terms according to the degree of seriousness and the likelihood of affecting the terms of the contract.
Condition can be considered to be the most important term of the contract which is central to the meaning of the purpose of the contract. In case of a breach of condition the aggrieved party can repudiate the contract and sue for damages (Knapp, Crystal and Prince 2016). The case Poussard v Spiers& Pond provides an example of condition
Warranties are less important terms of the contract. The case Bettini v Gye provides an illustration of a warranty. For breach of warranty the innocent party can only claim damages but cannot rescind the contract.
Intermediate term of a contract falls between a warranty and a condition. Such intermediate term is to be analysed as in accordance with the seriousness of breach of such term. The case Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd provides an illustration of an intermediate term.
The next rule that is relevant in case of written contracts is the Parole Evidence Rule. The Parole evidence rule states that when a business-law is in writing either wholly or partially any other evidence would not be acceptable which are likely to vary or contradict the terms of the written contract as held in the case Mercantile Bank of Sydney v Taylor. The rationale behind this rule is to preserve the integrity of the written contracts. To take into consideration any other evidence, which contradicts the terms of the contract, would contribute to the futility of the original written contract (Epstein, Archer and Davis 2014). However, it is to be mentioned that the Parole Evidence rule is not absolute in nature, and there are numerous circumstances in which other evidence related to the written contract are taken into consideration.
A Collateral Contract is an important example of an exception of the aforementioned Parole evidence rule. A collateral contract can be defined as a contract which has a separate existence from the original contract but is related to the main contract. An illustration of collateral contract had been illustrated in the case of Heilbut, Symons & Co v Buckleton by Lord Moulton. The consideration for entering the main contract is provided to the other party by the collateral contract. In the De La Salle v Guildford case ER 495, [1901] 2 KB, a tenant wished to take an apartment on lease however he had one condition. He only wished to taker the apartment on lease on the condition that the drains were working. The owner of the apartment provided the tenant with the verbal assurance that the drains were working. The Tenant took the apartment on lease and later on found out that the drains were not working. In this case the problem that had been faced by the Tenant was that the Parole evidence rule did not allow thesubmission of the verbal assurance that had been provided to the tenant by the owner in relation to the proper functioning of the drains. However it had been held by the court that the tenant could allege the breach of the collateral contract and in reliance of such co lateral contract claim damages. It can be stated that for the establishment of the collateral contract the party who wishes to establish it must prove that it fulfilled the following essentials:
However as held in the Heilbut, Symons & Co v Buckleton by Lord Moulton a party cannot repudiate the main contract for breach of the collateral contract.
It has been provided through the facts of the case Justin and Kate had seen the advertisement of of Green Haven Pty Ltd about a housing development called “Possum Retreat”. It had been provided in the brochure which contained the advertisement that the air was pure in this are as there was no mine or factory within a radius of two hundred kilometres. Justin had also further mentioned to Mike while negotiating the purchase that he was interested to buy the apartment only because the air was pollution free due to the absence of any factory or mine near the housing development. Mike who had been negotiating on behalf Green Haven Pty Ltd provided Justin the assurance that the air would be pollution free as there was no factory or mine located near the housing development. Thus by the application of the De La Salle v Guildford case, it can be stated that Justin had entered into the contract of purchasing the apartment by relying on assurance provided to him by Mike. Thus in in this case a collateral contract can be said to be existing which is consistent with the main contract as such collateral contract had been formed in relation to the main contract. The assurance of Mike was promissory in nature. There was an element of inducement on the part of Mike so that he would buy the apartment by relying on his assurance. However later it turned out that the Green Haven Pty Ltd had been aware of the fact that coal-mining operations were to start near the housing development from June 1. Justin and Kate had just moved in the house on 1st May. Therefore in this case it is clearly evident that there was breach of the collateral contract and due to the same Kate and Justin can claim damages but cannot repudiate contract.
Thus to conclude it can be said that Justin and Kate cannot repudiate the main contract for breach of the collateral contract. However, they can claim damages from Green Haven Pty Ltd.
The Australian Consumer Law which has been provided in schedule 2 of the Australian Competition and Consumer Act 2010 sets out the rights of the consumer and aims to regulate the conduct of corporations so as protect the rights of the consumers. The Australian Competition and Consumer Commission aims to protect the rights of the consumers, rights of the business, monitor prices and prevent illegal behaviour of corporations which is anti competitive in nature by implementing the provisions of the Australian Consumer law (Howells and Weatherill 2017). It has been provided in section 18 of the Australian Consumer law that corporations must not engage in misleading or deceptive conduct. It can be stated that corporations must refrain from creating a misleading and false impression to the public. This rule is applicable to advertising of products, packaging of products and any information which is provided by the staff of the employer who management in misleading and deceptive conduct. This rule is also applicable to statements of the business which are released in the media and or online. As held in the ACCC v Google Inc. case intention of engaging in false and misleading conduct is not relevant (Australian Competition and Consumer Commission 2018).
In the notable case Australian Competition and Consumer Commission v Hewlett-Packard Australia Pty Ltd [2013] FCA 653 a pecuniary penalty of 3 million dollars had been imposed on HP for breaching the provisions of section 18 of the ACL. Further it has been provided specifically in section 30 of the ACL that no person is allowed to provide misleading and false representations about the sale of land. It can be stated that any person who engages in providing false and misleading statements about the sale of land and in the process contravenes the provisions of the section 30 will be liable to pay a penalty pecuniary in nature.
Therefore by analysing the legal provisions of section 18 and 30 of the ACL and applying the same to the facts of the given case study it can be said that the organization Green Haven Pty Ltd. had engaged in misleading and deceptive conduct. The advertisement given Green haven Pty Ltd. Contained the provision that the housing development being built by Green Haven would be far away from the hustle bustle of the city. It was specifically provided that there was no mines or factories within a radius of 200 kilometres of the housing development complex. Justin and Kate had relied on such advertisement and purchased a house in that housing development. However it was later discovered by them that the operations of a mine were about to start very close to their apartment. Later it was also discovered by the Justin and Kate that Green Haven Pty Ltd had known about it all along. Therefore it is clearly evident in this given scenario that Green Haven Pty Ltd that they engaged in misleading and deceptive conduct by providing misleading advertisements to the public. Therefore as per the provisions of section 18 and 30 of the ACL Green Havens Pty Ltd is liable to pay pecuniary damages to those who were deceived by their conduct.
Reference List:
Poussard v Spiers and Pond (1876) 1 marketing 410
Bettini v Gye (1876) 1 QBD 183
Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1961] EWCA Civ 7
Mercantile Bank of Sydney v Taylor (1891) 12 LR (
De La Salle v Guildford case ER 495, [1901] 2 KB) 252
Heilbut, Symons and Co. v Buckleton [1913] AC 30.
Australian Competition and Consumer Act 2010
Google v ACCC (2013) 294 ALR 404
Australian Competition and Consumer Commission v Hewlett-Packard Australia Pty Ltd [2013] FCA 653
2014. Contract law: text, cases, and materials. Oxford University Press (UK).
Knapp, C.L., Crystal, N.M. and Prince, H.G., 2016. Problems in Contract Law: cases and materials. Wolters Kluwer Law & Business.
Howells, G. and Weatherill, S., 2017. Consumer protection law. Routledge
Epstein, D.G., Archer, T. and Davis, S., 2014. Extrinsic Evidence, Parol Evidence, and the Parol Evidence Rule: a Call for Courts to Use the Reasoning of the Restatements Rather than the Rhetoric of Common Law. NML Rev., 44, p.49.
Australian Competition and Consumer Commission. (2018). ACCC takes action against Apple over alleged misleading consumer guarantee representations. [online] Available at: https://www.accc.gov.au/media-release/accc-takes-action-against-apple-over-alleged-misleading-consumer-guarantee-representations [Accessed 4 May 2018].
Essay Writing Service Features
Our Experience
No matter how complex your assignment is, we can find the right professional for your specific task. Contact Essay is an essay writing company that hires only the smartest minds to help you with your projects. Our expertise allows us to provide students with high-quality academic writing, editing & proofreading services.
Free Features
Free revision policy
$10Free bibliography & reference
$8Free title page
$8Free formatting
$8How Our Essay Writing Service Works
First, you will need to complete an order form. It's not difficult but, in case there is anything you find not to be clear, you may always call us so that we can guide you through it. On the order form, you will need to include some basic information concerning your order: subject, topic, number of pages, etc. We also encourage our clients to upload any relevant information or sources that will help.
Complete the order form
Once we have all the information and instructions that we need, we select the most suitable writer for your assignment. While everything seems to be clear, the writer, who has complete knowledge of the subject, may need clarification from you. It is at that point that you would receive a call or email from us.
Writer’s assignment
As soon as the writer has finished, it will be delivered both to the website and to your email address so that you will not miss it. If your deadline is close at hand, we will place a call to you to make sure that you receive the paper on time.
Completing the order and download