Problems in interpreting the unfair contract terms provisions of the Australian Consumer Law

Harder, Sirko (2011) Problems in interpreting the unfair contract terms provisions of the Australian Consumer Law. Australian Bar Review, 34. pp. 306-324. ISSN 0814-8589

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Abstract

There are a number of ambiguities in the unfair contract terms provisions in Pt 2-3 of the Australian Consumer Law. The key concepts ‘consumer contract’, ‘standard form contract’ and ‘upfront price’ are not defined in an
unequivocal manner. Part 2-3 obliges the court to consider a term’s transparency when determining its fairness, but fails to specify the precise requirement(s) of unfairness for which transparency is to be relevant. Part 2-3 fails to expressly address whether a term otherwise unfair may be rendered fair by a price reduction, whether an unfair term can be enforced to
the extent to which it is fair, and whether the contra proferentem rule applies in the context of Pt 2-3. This article tackles the uncertainties mentioned and examines how the relevant provisions could be interpreted,
considering their language, purpose and context. It also makes suggestions for clarifying amendments.

Item Type: Article
Schools and Departments: School of Law, Politics and Sociology > Law
Subjects: K Law > K Law in General. Comparative and uniform Law. Jurisprudence > K0520 Comparative law. International uniform law > K0600 Private law
Related URLs:
Depositing User: Sirko Harder
Date Deposited: 22 Sep 2014 08:51
Last Modified: 07 Mar 2017 09:01
URI: http://sro.sussex.ac.uk/id/eprint/50116

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