Business Law and Competition & Consumer Act 2010 - Assignment Example

Businеss Lаw Name Institution Course Tutor Date 1) How and why has the common law of misrepresentation been largely superseded by consumer protection legislation such as the Competition & Consumer Act (2010) (Cth)? Consumers are identified to be always right by the law especially when businesses try to mislead or deceive them. The misrepresentation allegations involved the likelihood of some enforcement where the selling agent was supposed to ensure accuracy and truth of the statements used in the conversation with the consumer to avoid any act of breach. On the other hand, Shears (2016, 182) state that the consumer protection legislation such as the Competition & Consumer Act (CCA) (2010) (Cth) protects the consumer from any unfair business practice targeting specific activities that are harmful to the consumer. The common law of misrepresentation is only a part of the consumer protection legislation because it only protects customers from fraudulent and false claims that persuade a consumer into purchasing a product and entering into a binding contract. The misrepresentation Act allows the parties to claim for damage, which would only be effective to the specific customer, but not to all customers to the same product. When a party claims damage and is provided with financial compensation, the harm might be repeated to other customers. Bhana, and Visser, (2014, 184) argue that this is different from the consumer protection legislation, which advocates for the protection of all consumers of a certain product, thus requiring good conduct from the industries, suppliers, wholesalers, and the retailers in general. Consumer protection discourages deceptive and misleading conduct of the businesses as they engage in competition activities. Moreover, the consumer protection legislation increases the consumer rights and prohibits the conduct of businesses of conducting aggressive, unfair, and misleading trading practices. The CCA covers the entire market issues in a broad way since it identifies the relationships between consumers, retailers, wholesaler, and suppliers. The aim of the legislation is to promote fair-trading and business competitiveness through the provision of the customer protection. As articulated by Hutchinson, and Stoop, (2013, 705), the Act covers deeply the acquisitions, industry regulations, industry codes, price monitoring, unfair market conduct, and product labeling and safety. It supersedes the common law of misrepresentation because misrepresentation only focuses on the statement made by the seller making the buyer purchase a particular good or service despite the statement being made innocently, negligently, or fraudulently. The law of misrepresentation do not show concern about the practices conducted in the industry including the supplier, and wholesaler, but only focus on the interaction between the retailer and the buyer. 2) To what extent (if any) have the laws relating to unconscionability undermined the certainty of commercial and consumer contracts? The unconscionability conduct is a doctrine in the contract law that explains the terms that are exceptionally unjust or those that favor one side of the contract making one party to have a superior bargaining capacity and are against good conscience. The law undermines the certainty of commercial and consumer contracts because these contracts assume that the consumer has a higher bargaining power than that of the selling agent. Simons (2014, 431) states that unconscionability identifies that once there is an agreement made in collaboration with some actions, the practice enhances formation of a legally binding contract and associated obligations. The rationality of consumer protection legislation proposes that there should be the adoption of fairness and justice when making a legal contract. The classical contracts involve the formation of an agreement with both parties having equal economic power despite the presence of some implied terms. Many contracts formed in the society are implied contracts. The mental capacity, age, and bargaining power of the parties in a contract should be examined to ensure equality. The law relating to unconscionability assumes that contracts are forms of agreements that are voluntarily made and the parties have equal strengths. Additionally, Mupangavanhu (2015, 124) asserts that this law assumes that the fundamental aim of a contract is the achievement of certainty and predictability in the human transactions, for instance, the commercial transactions. In commercial and consumer contracts, judges recognise the importance of certainty in all the business transactions, thus putting obligations into some effect. The consumer contract assumes that in all goods sold, the price has to be reasonable despite the nature of the good thus allowing the consumer some statutory right to bargain for price deduction. The contract is supposed to remain being unconscionable from the moment it was made until the end, but should not change and make one side more relevant compared to the other side. Despite the fact that a party can be misled to enter into a contract, the judge involved in making judgment in a court should consider the flexibility of the deal. As postulated by Drotar (2014, 603), the purchasing terms should remain when making a purchasing agreement, but there should be no consideration of fair dealing, good faith, or promises being enforced. According to this law, all matters in the commercial activity should be stable, but not favoring one party. 3) To what extent (if any) has the doctrine of promissory estoppel made the requirement that all simple contracts be supported by consideration irrelevant? The doctrine of promissory estoppel deems that a promise becomes enforceable by the law the moment the promisor makes a promise to the promisee who happens to rely on the promise to his/her detriment. A consideration is the price through which a promise was made. The doctrine operates in the form of a consideration substitute when a contract law turns into certain promises or not being available in the consideration enforceable and binding. Bant and Bryan (2015, 6) argue that the issue leads to the promisee’s reliance being taken to be independent and enough basis for imposing the promise. The promisor is prohibited from refusing to agree the fact that a contract was formed because of lack of some consideration. Consideration should not be adequate but should be sufficient. Both parties have freedom of choice and freedom of contract. When there is uncertainty in the contract, meaning that one of the parties did not complete his/her responsibilities, the consideration would be irrelevant. Every party has a right in the agreement and they both have responsibilities to play. During the time of formation of a contract, both parties are supposed to have some mutual agreement in all terms and satisfaction of various elements of a contract makes it enforceable. As emphasized by Goldberger (2015, 16), a worth consideration might comprise of benefit, profit, interest, or right of one of the parties and the loss, suffering, detriment and responsibility that is undertaken by the second party. When the promisor is taking some actions, he/she should ensure that they consider the equality and clarity of the two parties in the contract. The promisor is prohibited from acting only because of the promise made, but to consider fairness and equitability of the actions. It is evident that the moment the promise happens to suffer some loss because of relying on the promise; the promisor should compensate the promisee. O'Gorman (2013, 1049) states that since the consideration is characterized by inconsistency and uncertainty, it is too narrow to be relevant in any contract. There should be means of trying to minimize the unfairness in the consideration, but this cannot take place when there is implementation of the promissory estoppel. The doctrine of promissory estoppel requires the law to shape the situation according to the argument at hand and avoid protecting the promisor if at all the promisee has already incurred some loss. References Bant, E. and Bryan, M., 2015. Fact, Future and Fiction: Risk and Reasonable Reliance in Estoppel. Oxford Journal of Legal Studies, p.gqv006. Bhana, D. and Visser, C.J., 2014. The Capacity of a Minor to Enter into a Consumer Contract: A Reconciliation of Section 39 of the Consumer Protection Act and the Common Law. Journal of Contemporary Roman-Dutch Law, 77, pp.177-194. Drotar, S., 2014. Breaking Too Darn Bad: Restoring the Balance between Freedom of Contract and Consumer Protection. NYL Sch. L. Rev., 59, p.603. Goldberger, J., 2015. Estoppel and contract. Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia, Vol. 29, No. 3, p.16. Hutchinson, A. and Stoop, H., 2013. Misrepresentation in Consumer Insurance: The United Kingdom Legislature Opts for a Reasonable Consumer Standard. S. African LJ, 130, p.705. Mupangavanhu, Y., 2015. Fairness a slippery concept: The common law of contract and the Consumer Protection Act 68 of 2008. De Jure, Vol. 48, No. 1, pp.116-135. O'Gorman, D.P., 2013. Redefining Offer in Contract Law. Miss. LJ, 82, p.1049. Shears, P., 2016. The Consumer Protection Regulations in the UK: The Story So Far. European Business Law Review, Vol. 27, No. 1, pp.177-193. Simons, J., 2014. The end of ‘unfairness' in commercial contracts: Proposed extension of ‘unfair contract terms' laws to business to business transactions. Governance Directions, Vol. 66, No. 7, p.431. Read More