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Consumer law helps to regulate the conducts, actions or behavior of a buyer and seller when they transact business. During the settlement of a transaction, transportation, logistic activities or disposition of goods and services, some misunderstandings between buyer and seller may arise. For example, grievances may occur when a consumer buys a commodity at a wrong price, goods arrive in a different condition, or e defect reveals after some time of product utilization. The Australian government saw the need to protect the end-user (consumer) from any mistreatment and victimization from the seller. Thus, there was an enactment of consumer law to help in guiding a consumer on how to resolve conflicts. This paper examines and analyzes the Australian consumer law in chapter 18.
Application of ACL
There is a universal Australian law that replaced the 17 existing national, state and territory laws to assure consumer protection and fair trading across the country. The law applies to both persons and corporations under CCA section 131. Australian consumers enjoy the same security and prospects about business; equally, companies have the same expectations and duties wherever they are situated in Australia.
The Australian consumer law (ACL) law summarizes many existing national and territory consumer laws into one that explains the characteristic aspects of cooperation between consumers and businesses. It is also used as a commonwealth law. Each area and state are required to make the ACL law the law of the jurisdiction so as to apply across Australia. ACL has been enforced by all Australian courts and tribunals in the states and territories. It is managed by ACCC and each state and territory consumer law agency. In order financial products and services to be treated in the same way, ACL is shown in an identical provision, in Australian securities and investments.
Difference between the ACL and Previous Consumer Laws
Section 3 of chapter 18 provides a new rule that applies to a lay-by agreement that replaced lay-by sales law. Section 3 of the ACL provides a new national rule for regulating unwanted sales practices, disclosure of information and sale agreements. This law replaces the state and territory law on door-to-door sales and another form of marketing that does not take place in a retail setting. Before the ACL, a consumer could experience difficulties with understanding the terms of the agreement before signing it as he was bound to its general meaning. After the introduction of the ACL, the burden was transferred to the supplier to make sure the consumer understands everything before signing a contract. According to the passing of the risk rule, the buyer is liable for the accidental loss of goods after signing the agreement. The law stipulates that any damage or loss of goods or service before delivery is the responsibility of the supplier until the goods reach consumer he or she accepts to receive.
The Parol evidence rule provides that since the parties have reduced their contract to writing. When interpreting the agreement, loss or damage is not measured as the parties when concluding their agreement decided to omit such information. The law provides that a supplier may or may not enter into an agreement to supply goods or services on terms that are unfair, undue and unreasonable to the consumer. A supplier was not liable for defects of goods previously, but now, the supplier remains liable and provides warranty for goods and services in case they are defected or spoilt. New national consumer law guarantees provisions and substitutes current constitutional implied conditions and warranties. The new consumer guarantee relates to care, skill, repairs, accessibility of spares parts, title, hidden securities and express warranties.
Bad Behaviors and Remedies for Breach of ACL
Consumer law enabled people to eliminate unfair practices in trading and business transactions. Unfair practices include confusing a client and deceptive conducts, as well as wrong pricing of commodities. The new law requires businessmen to seek advice to ensure that the contracting practices between them and suppliers will not be considered unfair. With this implementation of information standards, in case the consumer got goods or services from the seller or business with defects, consumers will have the right to sue. The consumer can act against manufacturers or importers, and the seller takes liability for the goods.
When a seller supplies a particular class of goods and services, the standards authorize them to provide all necessary and current information in a precise way. Information leads to improvement of consumer awareness, empowerment, and protection from the wrong use of under quality products. Business costs were reduced because businessmen only deal with a single law irrespective of where they are located in Australia. The new law enables buyers and consumers to conduct business without fear since business transactions are made in a fairway. Consumer law provides the consumer with an assurance of the protocols regarding the supply of goods and services.
Does Common Law Still Apply to Govern Consumer Rights
The ACL contains a single set of the provision concerning unfair practices and fair trading including amendments and additions of rules that reflect existing provisions in state and territory consumer laws. The provision targets deliberate lies or misleading representations or conducts in trade or commerce, enticement advertising, multiple pricing, harassment, pressure, wrongly accepting payment for goods and services not supplied.
Goods come with assurances that cannot be changed in the Australian Consumer Law. Consumers are entitled to a refund or reimbursement for a major loss or disappointment and damage. All consumers are also entitled to have the goods restored or replaced if the goods fail to meet stated quality and standards.
Any behavior from supplier ranging from making false title, false imprint, leading someone to make a wrong conclusion or omitting important information is considered as false or misleading. To define whether the conduct is misleading, an objective test is made. The court will reflect whether the conduct was likely to deceive a group of people to whom the conduct was directed. There is also a mistake of silence, whereby the supplier fails to disclose information on a deliberate will. Puffery is an exaggerated claim used by the supplier to advertise products or goods while information used to describe the product is untrue. The law requires a person to make a statement about future matters to show that they have sound grounds for making it, or it will be taken to be a deception.
Under Trade Practice Amendments provisions, the term consumer is defined to provide the safety that excludes transactions that might not impact on business activities or possible impacts of the relevant legislative provision. The term is defined under this complex and unnecessarily confusing legislation.
Limitations of ACL
Australian legal structure is based on a vital belief in the rule of law, justice and the independence of the judiciary. All the people, citizens, and non-citizens are treated the same according to the law. State law is used in courts, legal aids, and representation in investigating complaints and studying managerial decisions. State law is also used in administrative appeals, tribunal, human rights, and equal opportunity commissions. Police service enforces the law through the Australian crime commission.
There are no terms in general or common law for entering into a contract, but if both parties agree, they are required to write down and sign a document to show that they have agreed the terms. The agreement has been affected by the introduction of consumer protection act (CPA) 68 in the year 2008. The act comprises of the following sections:
Caveat Emptor Subscription
This part of CPA puts the situation on the supplier to make sure that the consumer understands the terms of the agreement before they enter into an agreement. If a seller hides any information, then he or she must be held liable.
Freedom to Contact
It states that a consumer agreement cannot surpass twenty-four months unless the consumer agrees and that supplier can prove a financial benefit for the consumer.
Passing of the Risk Rule
Section 19 of the CPA says that the supplier must be reliable of the goods and services until they are delivered to the consumer; in case of any defects on the way, the consumer has the right to replacement.
Parol Evidence Rule
Section 48 of the CPA inter alia offers that a supplier may not arrive into a contract to supply goods or services on terms that are biased, unjust or awkward.
The clause deemed a warranty on latent defects as non-operative. The warranty provides that the seller remains accountable for goods sold where a latent defect arises. Section 260 brought some changes to remedies available to the consumer when goods or services are below standard. In respect to defective goods, the consumer may discard the good for a refund, ask for a repair of the merchandises, ask for the replacement of the goods, and sue for damage. The consumer must return the goods explaining the reason for the return or ask the retailer to come and collect the goods if they cannot be transported back. The retailer cannot ask the consumer to buy other goods before refunding the money.
Defective goods cannot be rejected if the goods have got lost, destroyed or disposed of by of consumer. Goods are damaged after they are delivered by the seller in good shape. In respect of defective services, the buyer may ask for faulty services to be improved and terminate the service contract if the response is unacceptable or claims damage (Bruce 2010). According to ACL, a consumer can ask for a replacement, compensation for damage or repair if the supplier fails to fulfill his obligation in relation to the consumer’s demand. Anybody who breaches any rule in ACL may end up paying a civil financial penalty as stipulated in section 224. Penalties may be up to $1.1 million for corporate and $220,000 for individuals and entrepreneurs. The fine may be ruled out by a court that has discovered by help of reasonable proof, a breach of ACL has happened. A person affected may look for an injunction to stop a business from conducting in breach of ACL (part 5-2 division 2). A person can be compensated for their loss or damage resulting from the breach of the ACL after applying to the court for damages, (part 236) of ACL. When a customer applies for repayment in court, he or she can be paid for loss or damages incurred. A manufacturer can defend a claim in the following ways that defect did not exist in the time of supply and that goods were combined as part of other goods that were spoilt. A defect exists only because there was compliance with a compulsory standard and requirement for goods.
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