Contracts Flow Chart PDF

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Flow Chart for Contracts B...

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FLOW CHART 203 Is there a contract? Intention to be bound, meeting of the minds, essential elements, voluntary agreement

YES

NO No agreement

NO Duress / coercion / harassment /undue influence / mistake etc = void / voidable / void ab initio

What is the subject of the contract? Identify: goods or services or mixed

Is the subject or effect of the contract illegal?

YES Illegal Contracts Void / voidable

NO

Is there something wrong with the goods? YES NO Do you want to repair / replace / refund? Then you must prove the goods or services breach a guarantee  acceptable / merchantable quality  match description  match sample or demonstration model  right to sell  undisturbed possession  free from encumbrance  fit for purpose / disclosed purpose

Do you want to change / void a contract or agreement? Unconscionability : Statutory / Equitable OR Unfair terms OR Unfair practices

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 repair facilities and spare parts will be reasonably available  express warranties (ACL only)

YES ACL s3: consumer?

YES

NO

Check criteria for breach No remedy UNLESS YES Unconscionability, Unfair terms or Unfair Practices applies

No remedy UNLESS Unconscionability, Unfair terms or Unfair Practices applies

Major

Minor: refund / repair / replace within reasonable time?

Can reject?

Remedies:  Specific performance  Damages o CL needs contract breach; or Page 2 of 6

  

o ACL statutory Rescission Injunction Other

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Comparative table: Trade Practices Act/Australian Consumer Law TPA

ACL

ACL Section Heading

4A(5) 4B 4C 4K 51AA 51AB 51AC 51A 52 53 53A 53B 53C 54 55 55A 56 57 58 59 60 63A 64 65 65A 65AAA– 65AB–65AN 65B, 65S 65C 65C 65C 65C, 65E 65D, 65E 65F–65H 65R 65T 66A 67 68 68A 69 70 71 72 73

6 3 11 13 20 21 22 4 18 29 30 31 48 32 33 34 35 49 36 37 50 39 40 41 19, 38 44–46 254–258 129, 130 109–113 114–117 118 104–108 134–137 122–127 128 133 68 67 64 64A 51–53 56 54, 55 57 278–287

Related bodies corporate Consumers Acquisition, supply and re-supply Loss or damage to include injury Unconscionable conduct within the meaning of the unwritten law Unconscionable conduct Unconscionable conduct in business transactions Misleading representations with respect to future matters Misleading or deceptive conduct False or misleading representations about goods or services False or misleading representations about sale etc of land Misleading conduct relating to employment Single price to be specified in certain circumstances Offering rebates, gifts, prizes etc Misleading conduct as to the nature etc of goods Misleading conduct as to the nature etc of services Bait advertising Referral selling Wrongly accepting payment Misleading representations about certain business activities Harassment and coercion Unsolicited cards etc Assertion of right to payment for unsolicited goods or services Liability etc of recipient for unsolicited goods Application to information providers Pyramid schemes Provisions relating to country of origin representations Safety warning notices Interim bans Permanent bans Supplying etc consumer goods covered by a ban Safety standards Information standards Compulsory recall of consumer goods Notification requirements for a voluntary recall of consumer goods Liability under a contract of insurance Convention on Contracts for the International Sale of Goods Conflict of laws Guarantees not to be excluded etc by contract Limitation of liability for failures to comply with guarantees Guarantees as to title, undisturbed possession and undisclosed securities Guarantee relating to the supply of goods by description Guarantees as to acceptable quality and fitness for any disclosed purpose Guarantees relating to the supply of goods by sample or demonstration Linked credit contracts; Non-linked credit contracts

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TPA

ACL

ACL Section Heading

73A 73B 74 74A 74A(8) 74F 74G 74H 74K 74L 74A-74M 75AC 75AD 75AE 75AF 75AG 75AH 75AI 75AJ 75AK 75AL

14 2 60, 61 7 8 58 59 274 276 276A 271–273 9 138 139 140 141 145 146 147 142 148

Continuing credit contract Definition of ‘Loan Contract’ Guarantee as to due care and skill and fitness for a particular purpose etc Meaning of manufacturer Goods affixed to land or premises Guarantee as to repairs and spare parts Guarantee as to express warranties Indemnification of suppliers by manufacturers This Part not to be excluded etc by contract Limitation in certain circumstances of liability of manufacturer to seller Actions for damages against manufacturers of goods Meaning of safety defect in relation to goods Liability for loss or damage suffered by an injured individual Liability for loss or damage suffered by a person other than an injured Liability for loss or damage suffered by a person if other goods are destroyed Liability for loss or damage suffered by a person if land, buildings or fixtures Survival of actions No defective goods actions where workers’ compensation law etc applies Unidentified manufacturer Defences to defective goods actions Commonwealth liability for goods that are defective only because of compliance with Commonwealth mandatory standard

75AM 75AO 75AP 75AQ 75AZB76E 76F 77 77A 77B 78 79B 80 82 85 86C 86D 86DA 86E 87 87(1) 87(1B), 87(2) 87AAA 87AC 87B 87ZL–87ZO

144 143 150 149 151–168 224 225 228 229 230 217 227 232–235 236 207–211 246 247 223 248 237, 238 244 242 243 239–241 250 218 219–222

Liability joint and several Time for commencing defective goods actions Application of all or any provisions of this Part etc. not to be excluded or Representative actions by the regulator Offences relating to unfair practices Pecuniary penalties Pecuniary penalties and offences Civil action for recovery of pecuniary penalties Indemnification of officers Certain indemnities not authorised and certain documents void Criminal proceedings not to be brought for contraventions of Chapter 2 or 3 Preference must be given to compensation for victims Injunctions Actions for damages Defences Non-punitive orders Adverse publicity orders Regulator may issue a public warning notice Order disqualifying a person from managing corporations Compensation orders etc for injured persons Power of a court to make orders Applications for orders Kinds of orders that may be made Orders for non-party consumers Declarations relating to consumer contracts Regulator may accept undertakings Substantiation notices...