Australian Consumer Law - Assignment Example

ID: (insert your ID here) Name: (Insert your name here) Business Law Assignment To begin with the parties involved in the case, section 3 of Australian Consumer Law (ACL) defines Jimmy as a consumer. As a consumer, Jimmy is protected under section 181 of ACL from misleading commercial practices as exercised by Massive Freak Company. After establishing that Jimmy is a customer as provided by the law, it is essential to review the case with the client. To begin with, Jimmy entered into a unilateral contract involving the offer (as presented in the infomercial) of the Massive Freak Company and the acceptance of the same offer (because the client performed according to the condition stated in the offer/infomercial). In connection to the aspect of offer, the client has to be advised further that under Australian jurisdiction, an offer can be made to the world and still remains to be an offer2. The fact in this point is that the advertisement was made public and therefore further communication is irrelevant in this case. To be specific, it never was intended that a party proposing to use the product should make appointment with the Company’s office so as to obtain a repetition of the statement as advertised in the media. As David (2009) noted, where a company makes an offer touching the whole world, there is no need to import something beyond the fulfillment of the set conditions. As a matter of fact, Gibson & Fraser (2011) argue that notice before the action or event cannot be introduced in the court of law. Secondly, the information the client relied on was not just a mere sales puff. Lastly the statement from the Company as contained in the advertisement or as read by the client was not too vague to be interpreted as an offer or to be enforced (Australian Consumer Law, 2010). That is, it just does not matter whether Jimmy had bought the product from the Company (defendant). Jimmy must be advised that in as much as the advertisement constitute an offer, the general rule of communication of acceptance may be needed at some point. On the other hand, Jimmy was not obligated to communicate back that he intended to accept the offer; instead, acceptance occurred as it was directed by the offeror. In terms of consideration, there was inconveniences that Jimmy suffered in using the product as it was directed. Additionally, the product as advertised got a benefit in having the client use it. On the issue of the absence of time specification or limitation, it has to be noted that there were considerable number of possible constructions touching on the matter since Jimmy started using the product. It is possible that the usage of the product for merely 2 weeks or less could make him (client) safe for a considerable period. Secondly, after the infomercial, the client ordered the product and used it as directed by the Company. However, the body weight did not increase by 20% is provided in the agreement/contract. As a matter of fact, after the 14 days period of usage, client’s total body weight increased by just 10%, contrary to the provisions of the contract. Contrariwise, Jimmy should be advised on the defence available for the defendant (Massive Freak Company). Firstly, the client must be prepared to deal with the fact that the Company did not have a binding contract with him. In as much as the statements contained in the infomercial expressed an intention of a contract, Coops & Huett (2006) argue that is such cases the Company is likely to argue that it did not give Jimmy any promise. On vagueness, the Company can argue that the advertisement was too vague to amount to a contract since it was not time bound. That is, it was not possible to ascertain whether the product had been used in accordance with the instructions. Secondly, the Company can claim that the plaintiff did not have any consideration and for that matter the terms of the alleged contract as brought by Jimmy had the possibility of enabling another party to steal and use the product so as to claim the reward as stipulated by the infomercial. Just like it was in the case involving ACCC v TPG Internet3 the defence team is likely to argue that to come up with a contract by merely following the instruction or performing a given set rules needs to be either communication of the intention to do so (accept) or engaging in performance related to overt act; to be specific, just performing as did Jimmy (especially when it is established that he used the product in private) may not guarantee the court permission to believe that a contract actually existed. In fact, is the contract ever existed, and then the defendant will in mostly likely situation tell Jimmy that it was void in pursuance to statute at the time. If this will be the case, then further advice has to be given. That is, Jimmy should be informed that without question and as a general proposition, when there is an offer, it is essential, in order to make a contract that binds, not only that such should be accepted, but the act of acceptance should be given a notification (Taperell et al. 1983). However, this particular case has the ability of constituting an exception to this general proposition. In spite of this, it is not an exception, Jimmy is open to the observation that the said notification of the acceptance as purported require not precede the performance. The offer was continuous by the time Jimmy was entering the contract. If the notice of acceptance is going to be required---which this advice doubts very much, then Company gets the notice of acceptance contemporaneously alongside the notice of the performance of set condition. Further to this and based on the defence that might be held by the defendant, Douglas (2001) argues that it is true that in this case, it is the party who makes the offer who binds the whole issue by his language and from the nature of the advertisement and usage that the same party should not expect and should not require notice of the acceptance other than the notice from the performance as done by Jimmy. Based on the validity of the consideration, Jimmy has to be informed that the case is dealing with ‘nudum pactum’ therefore there is no advantage available for the Company in the use of the product. Again it is very obvious that the perspective of the advertisers a use by members of the public of their remedy, in case they can only get the public to have enough confidence in using the product which is likely to produce a sale which is directly beneficial to them. Thus the process of advertisement gets out of the case or use an advantage which is enough to constitute a consideration. Just like it was noted in the case involving Accc v Apple,4 a person who acted upon this particular advertisement and therefore accepted the offer, was inconvenienced at the request of the defendants. This consideration was enough to amount to a consideration in the court. Clarifying further on the issue of vagueness or ambiguity with regard to the defence the Company could be having, Jimmy has to be advised that there was no fixed time limit for someone to start gaining weight. The ad read in part: “…guaranteed any person who drank Massive Freak (in accordance with the directions on the packaging) three times a day in substitution of meals for 14 days would gain 20% of their body weight. The ad stated that the company would pay $5,000 to any person who took the Massive Freak Challenge and failed to gain 20% of their body weight after 14 days.” Based on the statement above, anybody using the product as prescribed would be entitled to $5,000 as a reward. Again, there is two possible times in the case which the claim could be brought contrary to what the defendant can argue about. First, it could mean the ability to gain weight by 20% was warranted to last during the process of gaining weight and it was during this period that the plaintiff failed to gain weight. Secondly, the reward of $5,000 would be open to Jimmy while the product was still being used by the plaintiff. The consideration the court is likely to come with is that it is likely to reject the argument that there were no considerations at all in the advertisement. Secondly, there are two critical considerations that are likely to emerge in the court and Jimmy should be informed about them. The first is the consideration of the inconvenience where Jimmy was obliged to use the product as directed. Secondly is the money gain which was likely to accrue to the Company as the defendants by the enhanced sale of the product, by reason of the plaintiff user of the same. There is ample consideration available for Jimmy to support this promise. Bibliography Australian Consumer Law, 2010, General Law a guide for businesses and legal practitioners, viewed 27 November 2012 http://www.consumerlaw.gov.au/content/consultations/downloads/ACL_Guide_General_Law_Draft_V1.5.rtf Douglas J. 2001, Fixation on Fixation: Why Imposing Old Copyright Law on New Technology Will Not Work” Indiana University School of Law-Bloomington. David, H, 2009, Computer Information Systems Law and System Operator Liability, Published in the Seattle University Law Review, Volume 21, Number 4, Summer. Coops, C & Huett, L 2006, Section 52: the sounds of silence, King & Wood Mallesons, viewed 29 November 2012 http://www.mallesons.com/publications/marketAlerts/2006/Documents/8556817w.htm Gibson, A & Fraser, D 2011, Business Law, 6th Edition, Pearson Prentice Hall Taperell, G Q, Vermeesch, R B, & Harland, D J, 1983 Trade Practices and Consumer Protection, 3rd edition, Butterworths Read More