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Unenforceable Terms (Disclaimers [use 1 or 2 suitable methods] (Contra…
Unenforceable Terms
Disclaimers [use 1 or 2 suitable methods]
Contra Proferendum
In a B2C contract, if disclaimer is unclear, court will favor the interpretation that favors the consumer
White v John Warwick & Co Ltd (1953)
Misrepresentation
Disclaimer was misrepresented
Curtis v Chemical Cleaning & Dyeing Co (1951)
Disclaimer was not a term
Olley v Malborough Court (1949)
S23 ACL
Unfair terms in a standard form contract are void
3 factors must be established
Contract is B2C or Big B to Small B
The term is unfair
S24 ACL [Director of Consumer Affairs Victoria v AAPT Limited]
is not reasonably necessary to protect the legitimate interests of the business
would cause detriment to consumer if it were to be applied or relied on
would cause significant imbalance in rights and obligations between B and C
Contract is standard form
Attempt to limit court's jurisdiction
Court will refuse to enforce a term that attempts to limit the court's jurisdiction
e.g. a term that prevents other party to commence legal proceedings
Restraint on Trade
Prohibits one party from engaging in a particular type of business or employment
if it is unreasonable in terms of
Geographical Area
Scope of Business
Time
Foster & Sons Ltd v Suggett (1918)