Statutory Implied Terms in Victoria

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  • Topic: Contract, Sale of Goods Act 1979, Contractual term
  • Pages : 12 (3375 words )
  • Download(s) : 37
  • Published : November 6, 2011
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Headings Page No.

introduction……………………………….………………………………….2

main anaysis

CONDITIONS UNDER TRADE PRACTICES ACT 1974 AND FAIR
TRADING ACT 1999……………………………………………..……………….3

STATUTORY IMPLIED TERMS, WHEN THEY APPLY AND
CONSEQUENCES OF BREACHING THE IMPLIED TERMS……...……5 IMPLIED UNDERTAKINGS AS TO TITLE …………………………….5 Rights to sell the goods ……………………………………..……………6
Quiet Possession of the goods ………………………………………….7 Freedom from encumbrances …….……………………………………..8 SALES BY DESCRIPTION ………………………………………………9 MERCHANTABLE QUALITY …………………………………………….10 FITNESS FOR PURPOSE ……………………………………………….11 CORRESPOND WITH SAMPLE …………………………………………13

DRAWBACKS OF STATUTORY IMPLIED TERMS………………………..15

STATUTORY IMPLIED TERMS: ARE THEY EFFECTIVE
AND NECCESARY………………………………………………………………...16

CONCLUSION………………………………………………………………………16

BIBLIOGRAPHY……………………………………………………………………17

LAW REPORTS…………………………………………………………………...18

STATUTORY IMPLIED TERMS IN VIC TORIA

INTRODUCTION

As the world evolves through time, the business industry keeps on developing, indicating a fast growth rate of the numbers of merchants around the globe. Each seller will try to sell their goods and services more than their rivals and this merely shows that the current competition is extensive. Since sellers are eager to sell their goods and services, the buyer is often mislead and trapped into business dealings which the buyer’s have had to regret in the end. In order to succeed in their business dealings, the seller, in many situations, tend to withhold important information regarding the good or service they are selling. ‘Consider an injury caused by a product. A person consumes contaminated ginger beer. A child’s toy snaps and injures the child. The brakes in a car fail.’[1]

Most of the history of the sale of goods has been in the context of freedom of contract; that is, buyers and sellers were free to make their own bargains.[2] Caveat emptor meaning “let the buyer beware” is the principle that the buyer is fully accountable in evaluating the quality of a good or service prior to buying. Caveat Subscriptor meaning "let the signatory beware" is the principle of holding the signatory bound by terms of the document signed(while caveat emptor speaks of the buyer only, caveat subscriptor relates to both parties). Therefore, in the past it was assumed that, buyers and sellers knew what the bargain was worth to them, that they were at ‘arms length’, and that both parties had equal bargaining power, hence buyers were not in need of protection from the law.[3] However, this was not the real picture we have seen back in the past. Sellers had been always the powerful party in business transactions while consumers have been defenseless in the process of a sale as they lack sufficient information.

These lost rights of consumers were first reinstated in 1974 when the Commonwealth Government formed the Trade Practices Act 1974.[4] The parliament has arbitrated certain terms to be implied which sellers and buyers have to abide by in the course of their business. Sellers were effectively avoiding their responsibility under the original legislation, so the government revised the original legislation by incorporating Part V of the Trade Practices Act 1974(TPA).

Statutory implied terms are simply defined as unspoken terms which are enforced by law. These Statutory implied terms provide the consumers with security and authority to stand up to sellers if they have been treated unjustly. The common wealth legislation was not sufficient to protect all consumers as TPA was limited to a certain extent; hence a need to restore the rights of all buyers subsisted. The states were concerned to “plug the gaps” left by the common wealth legislation and as a result enacted complementary legislation within their respective state boundaries.[5] In Victoria these gaps are fulfilled by the Fair...
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