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Problems in interpreting the unfair contract terms provisions of the Australian Consumer Law
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.
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- Published
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- Published version
Journal
Australian Bar ReviewISSN
0814-8589Publisher
LexisNexisVolume
34Page range
306-324Department affiliated with
- Law Publications
Full text available
- No
Peer reviewed?
- Yes
Legacy Posted Date
2014-09-22First Compliant Deposit (FCD) Date
2014-09-21Usage metrics
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