“An action under s 18 of the Australian Consumer Law has significant advantages for the plaintiff compared to an action for misrepresentation at common law”. Do you agree? List the main advantages.
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Question No: 2
Topic: terms of the contract
Summary of Question:
There is a contract of purchase for an off the plan property. The seller has confirmed things been listed in the brochure. However, The buyer receives the house which does not match what has been listed on the brochure. There is no written description in the contract.
Analysis & Discussion
- Issue: The issue is are the things listed in the brochure part of the contract? Whether Hannah and Daniel possess any contractual rights regarding the details of the brochure since The contract fails to consider the details in the brochure.
- Rule:
An advertisement placed in the media may amount to an offer or to an invitation to treat. Advertising or displaying goods for sale is generally not an offer. Fisher v Bell [1960] 3 All ER 731
There is no rule which says an oral statement cannot become a term. A statement does not have to be in the form of a promise to be promissory. Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 and Oscar Chess Ltd v Williams [1957] 1 All ER 325
Damages is the most common remedy awarded by the common law. Damages is a monetary compensation for harm that has been suffered by the plaintiff and that can be measured in money. Addis v Gramophone Co Ltd [1909] AC 488
- Application:
No, mere puff, it’s not a term. The statement 1 of a ‘piece of paradise is considered a mere puff, and hence there is no contractual impact related to it. Advertising or displaying goods for sale is generally an invitation to treat.
Yes, it is a term of contract. Even though advertisement is an invitation to treat but in this case the seller has confirmed the statement before selling, therefore it is a term. Statement 2 regarding the appliances , however, may be seen as promissory. Hannah and Daniel appear to be thrilled by the statement before proceeding with the contract. Besides, Max is a professional and possesses adequate knowledge regarding appliances. The parol evidence may be applicable as the contract was signed immediately after the statement. Even though the statement is not included in the contract, it may be considered a collateral contract.
Yes, it is a term of contract. seller has confirmed. Statement 3
- Conclusion: The two individuals Hannah and Daniel seem to possess contractual rights to the brochure statements. The primary binding statement is the presence of appliances from Europe. This statement seems to be significant in the contract. In this case however, the term may be considered as a warranty and only damages will be considered. In the case the cheap products are from Europe, Daniel and Hannah may not have rights to the claims at all.
Written Answer:
- Introduction: Summary + Issue
- Body: Rule + Application
- Conclusion:
There is a contract of purchase for an off the plan property. The seller has confirmed things listed in the brochure. However, The buyer receives the house which does not match what has been listed on the brochure. There is no written description in the contract.The issue is are the things listed in the brochure part of the contract? Whether Hannah and Daniel possess any contractual rights regarding the details of the brochure since The contract fails to consider the details in the brochure.
No, mere puff, it’s not a term. An advertisement placed in the media may amount to an offer or to an invitation to treat. Advertising or displaying goods for sale is generally not an offer, as held in Fisher v Bell [1960] 3 All ER 731. The statement 1 of a ‘piece of paradise is considered a mere puff, and hence there is no contractual impact related to it. Advertising or displaying goods for sale is generally an invitation to treat.
Yes, it is a term of contract. There is no rule which says an oral statement cannot become a term. A statement does not have to be in the form of a promise to be promissory, as held in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 and Oscar Chess Ltd v Williams [1957] 1 All ER 325. Even though advertisement is an invitation to treat but in this case the seller has confirmed the statement before selling, therefore it is a term. Statement 2 regarding the appliances , however, may be seen as promissory. Hannah and Daniel appear to be thrilled by the statement before proceeding with the contract. Besides, Max is a professional and possesses adequate knowledge regarding appliances. The parol evidence may be applicable as the contract was signed immediately after the statement. Even though the statement is not included in the contract, it may be considered a collateral contract.
Yes, it is a term of contract. Damages is the most common remedy awarded by the common law. Damages is a monetary compensation for harm that has been suffered by the plaintiff and that can be measured in money, as held in Addis v Gramophone Co Ltd [1909] AC 488.
The two individuals Hannah and Daniel seem to possess contractual rights to the brochure statements. The primary binding statement is the presence of appliances from Europe. This statement seems to be significant in the contract. In this case however, the term may be considered as a warranty and only damages will be considered. In the case the cheap products are from Europe, Daniel and Hannah may not have rights to the claims at all.
