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Legal Studies > Consumer Law > Flashcards

Consumer Law Flashcards

1
Q

Define Caveat Emptor

A

‘Let the buyer beware’. Implies that consumers should use their own knowldge and care to protect themselves from exploitation.

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2
Q

Define Laissez-faire Economy

A

An economic system in which the state refrains from interfering with markets by regulation or other means

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3
Q

Define Consumer

A

A consumer is any person who acquires goods and services for an amount not exceeding $100,000.

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4
Q

Define Remedy

A

A means by which redress or reparation is provided for the breach of a legal right

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5
Q

Define Contract

A

An agreement made between two or more people that is recognised by the courts as being legally binding on the parties

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6
Q

Define Offeror

A

The person making an offer of an agreement

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7
Q

Define Offeree

A

The person whom the offer of an agreement is made

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8
Q

What are benefits of a WRITTEN CONTRACT?

A
  • not having to prove the contract existed
  • not forgetting what the terms were/are
  • limits obligations to what is on paper rather than what is understood or said in negotiations
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9
Q

What are problems with WRITTEN CONTRACTS?

A
  • May be long and difficult to read
  • Consumer may rely on represeantations made to them at POS by the retailer. Hence, the written contract won’t be a fair representation of the consumer’s understanding of an issue
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10
Q

How can ORAL CONTRACTS be proven in court?

A

-Behaviour of both parties before and after an agreement
-specific actions
-past dealings

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11
Q

Define Parol Evidence Rule

A

if a written agreement appears to be a complete record of the agreement, it will be accepted against a contradictory term made orally.

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12
Q

What are the 5 elements of a contract?

A
  1. Intention to create legal relations
  2. The offer by one party
  3. The acceptance of that offer
  4. Consideration from the offeree
  5. Legal capacity of both parties
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13
Q

Define Offer

A

A firm proposal to form a binding contract, made with a willingness to be bound by its terms.

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14
Q

Define Invitation to Treat

A

An initial invitation to others to make an offer

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15
Q

Define Consideration

A

Something given, done or suffered by the promise in return for a promise in a contract

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16
Q

When do obligations become negated?

A

If voluntary consent is not given, it is a mistake, misrepresentation or situation of duress.

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17
Q

Define Condition

A

term of fundamental and essential importance; if a condition is breached by a party the other party is entitled to terminate the contract and can sue for damages

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18
Q

Define Warranty

A

A minor term of a contract whose breach entitles the aggrieved party to sue for damages, but not to end the contract

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19
Q

Define Express Terms

A

A contractual term that has been specifically stated and agreed to by both parties at the time the contract is made, either in writing or orally

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20
Q

Define Implied Terms

A

A contractual term that has not been included in the formal agreement; terms can be implied by custom or law, or because of the presumed intentions of the parties.

21
Q

What is an example of an implied term in ACL?

A

Acceptable quality

22
Q

What will a party relying on an exclusion cause have to do?

A

Must show they took reasonable steps to give notice of the clause to the other party before or at the time the contract was made

23
Q

Define unconsciousable conduct

A

One party’s exploitation of the vulnerability of another party to a contract; the victim may have been impaired by some external factor (such as age, disability or lack of education) or may have been deceived or threatened by the stronger party.

24
Q

Define undue influence

A

One party exploits a relationship of influence to induce the other party into entering a contract

25
Q

Define consumer contract

A

A contract for the supply of goods or services, or for a sale or grant of interest in land, to an individual purchasing the goods, services or land for personal, domestic or household use.

26
Q

What are the two types of undue influence?

A
  1. Express undue influence
  2. Presumed undue influence
27
Q

Contracts Review Act 1980 (NSW)

What must a Court consider when granting relief to unjust contracts?

A
  • Public interest
  • All circumstances of the case
  • Whether the aggreived party had the oppurtunity to negotiate the terms before signing
  • Whether the terms were reasonable or difficult to comply with
  • Whether the parties had equal bargaining power
28
Q

What is the maximum civil penalty for unconsciousable conduct?

A

Individuals: $220,000
Corporations: $1.1 million

29
Q

What are the 4 terms of Negligence?

A
  1. The defendent owed them a duty of care
  2. The defendent breached that duty
  3. Damage was suffered
  4. Damage was caused by the breach
30
Q

What are examples of non-statutory mechanisms for ad control?

A
  • Ad Standards
  • NSW Fair Trading
  • ACCC
31
Q

What is the Code of Ethics?

A

A Code that requires all advertising to be distinguished as such. Failure to disclose a brand or commercial relationship can be seen as a breach of this Code.

32
Q

Define Registration

A

Listing practitioners on an official registar, to identify them and ensure they comply with legal requirements

33
Q

Define Certification

A

A means of recognising those who have obtained qualifications that are neccessary and/or desirable for practising that occupation

34
Q

Define Licensing

A

A means of identifying those who have fulfilled criteria relating to education, experience, compliance with the Code of Ethics, and authorising them to practise.

Generally involves a regulating body to administer the licensing scheme

35
Q

What are examples of self regulating bodies?

A
  • AMA
  • NSW Law Society
  • APHRA
36
Q

Whats the issue with self-regualtion?

A
  • It causes a lack of uniformity
  • Its difficult for employers assssing breaches regarding ethics
  • hard for consumers to inform themselves about the quality of a professional’s practice
37
Q

Define Protective Jurisdiction

A

Jurisdiction that allows medical practitioners to make decisions and exercise their powers to protect patients

38
Q

When is a consumer not entitled for a remedy?

A
  • Changed mind
  • Damaged or used goods in an unreasonable manner
  • Discover you can buy them more cheaply elsewhere
  • Examined goods before buying and should have viewed any obvious fault
  • Had defect drawn to attention before buying
  • Did not make clear what service you wanted and what you wanted it to achieve
39
Q

What are examples of State help Organisations?

A
  • NSW Fair Trading
  • NSW Ombudsman
40
Q

What powers do NSW Fair Trading Have?

A
  • Immediate cancelling or revoking authority
  • Disqualifying license holder from holding or future obtaining license
  • Guidance on self regulation and trader education
  • Warnings
  • Penalty notices and public naming
  • Prosecution
41
Q

What are Enforcement Undertakings?

A

NSW Fair Trading posts a registar on their website that inform people of the various enforcement actions (penalty) being placed against individuals or businesses.

42
Q

What does the CCA do?

A
  1. Promote competition between businesses
  2. Promote fair trading
  3. Providing protection of consumers in their dealings with business
43
Q

What are some powers of ASIC?

A
  • Makes rules aimed at ensuring the integrity of financial markets
  • Investigates suspected breaches of the law and in doing so require people to produce books or answer questions in an examination
  • Issue infringment notices in relation to alledged breaches of some laws
  • Seek civil penalties from the courts
  • Commence prosecutions
44
Q

What orders can NCAT require?

A
  • An order for money to be paid
  • An order that money owed does not have to be paid
  • An order for goods and services to be provided
  • An order to fix or replace faulty goods
  • An order for a refund and the goods to be replaced
45
Q

How does CCA use enforcement and complaince strategy?

A
  1. Enforce the law through litigation
  2. Ensure compliance by educating and informing consumers about their responsibilities under CCA
  3. Working with other agencies to implement these strategies
  4. Undertaking market studies
46
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48
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Legal Studies (11 decks)

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