Monop Essay

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Monop


Legal Studies Essay Joey Agerholm Exclusion clauses determine the liability of something
that might go wrong within a contract. They are used by sellers as an attempt to avoid or
limit their liability. The seller has the advantage over the buyer who must agree to the
clauses to purchase the product/service. Because of the buyers disadvantage the court
takes such cases, involving exclusion clauses, very seriously, and the content of the
clauses are carefully interpreted. With the current Trade Practises Act and the Fair
Trading Act the standard form of business contract is adequate and effective in protecting
the buyer. The Trade Practise Act is the most effective legislation for the protection of
the consumer. It implies to the following situations:- - "A promise by the seller that the
buyer will become the owner" If a car dealer breaks a promise or part of a contract, for
example that he has the right to sell a car, and the car is stolen then although the buyer
will have to give the car back he/she will get her money back. - " A promise by the seller
that goods will fit the description supplied by the seller" In this case the buyer is
protected if the seller makes a promise, which is a condition of the contract, describing
the product, and when the buyer receives the product, it does not match the description. -
" A promise where the seller is made aware of the purpose for which the goods are
required, that the goods will be reasonably fit for that purpose" This condition is
implied when the buyer makes the purpose of the goods needed known to the seller, and the
buyer then relies on the seller's judgement in providing the correct product. For example
it would not be reasonable if you made the seller aware that you wished to purchase
something suitable for mowing the average suburban backyard and you were sold a tractor. -
"A Promise that goods are of merchantable quality" According to this act a good is
considered to be merchantable if they are suitable for the prospect for which other
similar goods are sold, involving the description applied to them, the price and any other
relevant information. This act does however does not protect the consumer if he/she has
examined the product and missed any defects that should have been seen or if the seller
made him/her aware of the defect prior to the purchase of the product. - "A promise that
goods purchased on the basis of a sample will match the sample" Here the consumer is
protected if he/she purchase, for example paint, on the basis that it matches the sample
shown in a sample booklet. These terms do provide adequate protection if the buyer is
effected in such circumstances. There are a number of sellers who attempt to deceive the
buyer through conditions of contracts however most standard form contracts contain
reasonable exclusion clauses, meaning acts such as the Trade Practises Act are not
necessary to resolve problems. For example the conditions of the attached RACQ advertising
contract. Each condition is fair and to be expected. For example condition 8, which states
that the advertiser may at any time cancel or alter an advertisement so long as the
publisher is notified in writing prior to the deadline date. It is common sense that the
publisher would need to be informed of any changes before the deadline so the buyer, in
this case the advertiser, is not being hardly done by. It may be said that the buyer is
effected by the condition when it states that the change must be in written form. It could
be argued that if a decision is made within hours of the deadline it is unreasonable to
expect the alteration in written form. However with current technology a letter can be
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