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

journal contribution
posted on 2023-06-08, 18:20 authored by Sirko HarderSirko Harder
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.

History

Publication status

  • Published

File Version

  • Published version

Journal

Australian Bar Review

ISSN

0814-8589

Publisher

LexisNexis

Volume

34

Page range

306-324

Department affiliated with

  • Law Publications

Full text available

  • No

Peer reviewed?

  • Yes

Legacy Posted Date

2014-09-22

First Compliant Deposit (FCD) Date

2014-09-21

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