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Is Your Agreement Legally Sound
Ensure your agreements are legally sound with Arida Lawyers' review, strategic advice and preparation of legally compliant contracts and terms and conditions.
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Our Services
At Arida Lawyers Pty Ltd, we offer an extensive range of contractual services tailored to meet the diverse needs of our clients while ensuring compliance with the prevailing legal frameworks. Our expertise spans across various facets of contract and consumer law, providing comprehensive advice and represention Here are the core contractual services we provide:
Contract Review and Analysis:​ We can assist you by reviewing and analysing contracts, terms and conditions, and terms of business to ensure they are legally sound, fair, and in alignment with your business objective.
Contract Drafting and Preparation: We regularly prepare contracts and terms and conditions that are compliant with the relevant statutory framework, whilst ensuring your interests are protected.
Advice on Contractual and Consumer Disputes: Our lawyers are equipped to provide strategic advice on any arising contractual and consumer disputes, aiming to prevent escalation and foster amicable resolutions wherever possible.
Representation in Consumer and Contract Disputes: We provide legal representation for clients in contract and consumer disputes, advocating your rights in negotiations and if necessary, legal proceedings in the NSW Tribunals and Courts.
Long-term Contractual Management: Our services extend to long-term contractual management, ensuring ongoing compliance, and adapting to legal and operational changes over time.
Understanding Unfair Contract Terms and Contractual Compliance
Arida Lawyers can assist you with reviewing, preparing, and advising on your contracts and terms and conditions.
This guide analyses the concept of unfair contract terms within the purview of the Australian Consumer Law, contained in Schedule 2 of the Competition and Consumer Act (NSW) 2010, providing a lens through which you can critically analyse your contracts and terms and conditions, and ensuring your business engagements in goods and services do not contravene the Australian Consumer Law.
What are Unfair Contract Terms within the purview of the Australian Consumer Law?
Unfair Contract Terms are provisions within a contract, including the terms and conditions, that create a significant imbalance in the parties’ rights and obligations, which are not necessary to protect the legitimate interests of the party who would be advantaged by the term, and would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.
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Section 24 of the Australian Consumer Law provides the relevant definition of the term "unfair", which states:
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"24 Meaning of unfair
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(1) A term of a consumer contract or small business contract is unfair if:
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(a) it would cause a significant imbalance in the parties' rights and obligations arising under the contract; and
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(b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and
(c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on."
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In determining whether a term is unfair, the courts must take into consideration the extent to which the terms are transparent, the contract as a whole, and the readily availability of the contract to the respective parties. Continue reading below for further insight on some examples of Unfair Contract Terms, with reference to section 25 of the Australian Consumer Law.
Terms that enable one party (but not another) to avoid or limit their obligations under the contract, per section 25(a) of the Australian Consumer Law.
Section 25(a) of the Australian Consumer Law denotes a significant imbalance in the contractual obligations between the two parties involved - referred to as Party A and Party B for simplicity. This imbalance manifests when the contract affords one party more rights or fewer obligations than the other, which is seen as unfair under the Australian Consumer Law.
In the given example, a clause in a service contract excludes the service provider (Party A) from any responsibility for damages that may occur during the service delivery, whereas the consumer (Party B) is held accountable for any claim arising from such damages.
This scenario elucidates a one-sided term that unfairly benefits Party A at the detriment of Party B. Party A can avoid or limit their obligations under the contract, which is essentially a mechanism to divert responsibility and potentially cause financial or other forms of detriment to Party B.
Such a term is likely to be viewed as unfair as it creates a significant imbalance in the parties' rights and obligations under the contract. It's not reasonably necessary to protect Party A’s legitimate interests, especially if Party A is in a better position to prevent or mitigate the damages. Additionally, the term could cause detriment to Party B if it were to be applied or relied upon.
Terms that enable one party (but not another) to terminate the contract per section 25(b) of the Australian Consumer Law.
The abovementioned provision refers to a clause within a contract that grants unilateral termination rights to one party, without affording the same rights to the other party. This scenario may lead to a significant imbalance in the contractual relationship, which is a matter of concern under the principles of fairness contained in the Australian Consumer Law.
In the above example, a clause in a contract grants the supplier (Party A) the exclusive right to terminate the contract, while the consumer (Party B) is not afforded a similar right. This provision places Party A in a position of power, allowing them to dissolve the contractual relationship at will, whereas Party B is left without any recourse to exit the contract under potentially unfavourable or burdensome conditions.
This clause significantly skews the balance of rights and obligations in favour of Party A. It’s particularly concerning as it undermines Party B’s ability to protect their interests or to exit a contractual relationship that may no longer serve their needs or circumstances. The absence of a reciprocal right for Party B to terminate the contract represents a substantial imbalance, which could lead to unfair consequences.
Such a term can be seen as unfair as it does not satisfy the principles of equitable contractual relationships, where both parties should have corresponding rights and obligations. Moreover, it is unlikely to be reasonably necessary to protect the legitimate interests of Party A, especially if it leaves Party B vulnerable to potential exploitation or unfair treatment.
In light of the potential for unfairness and the stipulations of the Australian Consumer Law, it is advisable to structure contractual terms in a manner that ensures balanced termination rights for both parties. This approach not only upholds the principles of fairness and equity but also minimises the risk of legal disputes and fosters a more harmonious business relationship.
Terms that penalise one party (but not another) for breaching or terminating the contract per section 25(c) of the Australian Consumer Law.
The above provision relates to a contractual clause where one party faces penalties or adverse consequences for either breaching or opting to terminate the contract, while the other party is exempt from similar penalties. This approach can create a significant imbalance in rights and obligations between the two parties, potentially falling short of the fairness principles contained in the Australian Consumer Law.
In the illustrated example, a clause within a contract places hefty fines on the consumer (Party B) for choosing to terminate the contract early, while the supplier (Party A) faces no reciprocal penalties for similar actions. This arrangement significantly disadvantages Party B, who may find themselves financially penalised for exiting the contract, while Party A has the liberty to terminate without incurring any penalties.
This clause creates an unjust scenario where the consumer (Party B) is deterred from terminating the contract due to the financial repercussions, even if the continuation of the contract is no longer in their best interest. On the other hand, the supplier (Party A) has an unfair advantage as they are free to terminate the contract without any financial deterrent, thereby escaping any obligations that may no longer be favourable to them.
The stark disparity in treatment between Party A and Party B in this clause is likely to be deemed unfair under the Australian Consumer Law, as it does not foster a balanced contractual environment. Such a term is not only detrimental to Party B, but it's unlikely to be reasonably necessary to protect the legitimate interests of Party A, particularly if it puts Party B in a position of financial strain or undue burden.
The aim of a fair contractual agreement should be to ensure that both parties have equal rights, obligations, and reciprocal penalties for similar actions. It's advisable to draft contracts that promote balanced penalties and consequences for both parties in the event of a breach or termination, thereby adhering to the principles of fairness and equity enshrined in the Australian Consumer Law.
Terms that enable one party to vary the terms of the contract unilaterally per section 25(d) of the Australian Consumer Law.
The above provision refers to contractual clauses that grant one party the exclusive authority to modify the terms of the contract without the consent, knowledge, or similar authority being granted to the other party. This type of provision can significantly distort the balance of power and fairness between the parties involved in the contract, which could potentially contravene the principles set forth by the Australian Consumer Law.
In the provided example, a clause in the contract allows the service provider (Party A) to alter the service costs at their discretion without being required to provide prior notice or obtain consent from the consumer (Party B). This arrangement places Party B in a vulnerable position, as they are subjected to possibly unexpected and not agreed cost adjustments imposed by Party A, without any recourse or prior knowledge.
This unilateral power afforded to Party A can lead to unfair and unpredictable scenarios for Party B, who may find themselves bound to new terms that were not part of the original agreement, and which could potentially impose financial strain or other unforeseen challenges. Party B's lack of input or awareness regarding such changes undermines the principle of mutual consent which is a cornerstone of contractual agreements.
Furthermore, the absence of a requirement for Party A to notify Party B about the changes or obtain their consent can lead to a lack of transparency and trust in the contractual relationship. This provision essentially allows Party A to move the goalposts at any time during the contractual relationship, which could be detrimental to Party B’s interests and contrary to the essence of fair contractual practice.
Such a term may not be reasonably necessary to protect the legitimate interests of Party A, especially if it results in unjust hardship or unforeseen obligations for Party B. The unilateral variation clause may be seen as creating a significant imbalance in the parties’ rights and obligations under the contract, a red flag under the unfair contract terms regime of the Australian Consumer Law.
To foster a balanced and fair contractual environment, it's advisable to ensure that any clauses allowing for variations in the contract terms are mutually agreeable, transparent, and provide for adequate notice and consent from both parties.
