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ENTERING INTO A CONTRACT
In simple terms a contract is a promise or set of promises which the law will enforce. Over many years, courts have developed principles which tell us whether there is a legally binding or enforceable contract in existence. In a contract for the sale of goods or services there is a legal agreement between you and the person from whom you are purchasing goods or services whereby they agree to sell you those goods or services and you agree to pay for them at an agreed price or an agreed rate.
How do you know you have entered into a contract?
An agreement for sale of goods or services arises where the following elements are present:
- When you are purchasing goods in a shop the offer is made not by the shopkeeper displaying the goods but when you take the goods to the checkout and offer to buy them.
- Generally, circulars and catalogues do not constitute offers but rather you sending in an order form is the offer.
- At auctions, a bidder makes the offer and the offer is accepted by the auctioneer with the fall of the hammer.
Even though it is not generally necessary to have a contract in writing, it is generally advisable when larger purchases are involved and especially where a contract is for the provision of services.
The contract should record the following details;
RIGHTS UNDER A CONTRACT
The general law of contracts derived from the decisions of courts over the years gives you some rights if there is a breach of a term of the contract. The general law also may also give you some rights if the seller has engaged in certain types of conduct such as fraud.
There is also legislation called the Sale of Goods Act which may give you additional rights under a contract in some circumstances. The Act does this by saying that in certain types of contracts extra terms will be implied or read into the contract by courts unless the contract expressly says that these implied terms are excluded.
Some of these implied terms are:
What rights do I have if a term of the contract has been breached?
If a contract has been breached, the general law of contract provides a range of possible remedies, depending on how important the term was to the making of the contract.
It may be possible for you to:
When can I return goods?
You can return something for either a refund of the monies you paid, repair of the goods or replacement of the goods if the goods are defective, the goods are not what was described by the salesperson or in advertising, both generally or at the place where you purchased the goods, or you let the salesperson know why you wanted the goods and the goods are not fit for the purpose you told the salesperson you wanted them for.
You do not have a right to a refund because you bought goods which are the wrong size or you changed your mind about the colour or decided you just do not like the goods any more. Some stores will give you a refund or exchange the goods for other goods or give you a credit note. They are not obliged to.
What if I return the goods and I only want a cash refund?
If the goods were faulty or inaccurately described or not suitable for the purpose you made known to the salesperson you can insist on a cash refund and you do not have to accept a credit note even if the store has a "No Refund" sign. Do not be deterred by no refund signs as no refund signs only apply if you bought the wrong sized colour or changed your mind. They do not apply when the goods are faulty, improperly described or not fit for the purpose which you told the salesperson you were buying them for.
How long can I keep the goods for before I demand a refund?
This depends upon the nature of the goods. For instance it may be considered unreasonable to purchase an article of clothing to wear and wash it numerous times and then to ask for a refund because stitching comes loose or the like. Each case needs to be decided on its merits but there is a difference between a defect and fair wear and tear. The nature of fair wear and tear depends upon the type of good purchased and the use to which it is put. It also depends upon the type of materials of which the goods are made.
In some cases goods may need small repairs. If the seller is able to make those repairs without difficulty, the seller may be able to insist on repairing the good rather than replacing it.
PRODUCT SAFETY AND PRODUCT INFORMATION
A significant part of consumer protection law surrounds the schemes developed by state and federal Parliaments dealing with the prescription of standards.
For example, the federal Trade Practices Act gives the minister certain powers of regulation, including:
Once a standard is applied to goods or they are subject to a ban they must not be supplied.
If you have been supplied with goods which contravene a consumer safety standard and you suffer loss or damage which would not have occurred if the standard had been complied with, you may have the right to compensation.
You may also be entitled to recover from the supplier any money paid for the goods or a court can order that the goods be repaired or modified.
The Fair Trading Tribunal
The Fair Trading Tribunal replaced the Consumer Claims Tribunal from 1 March, 1999. The purpose of the Tribunal is to resolve problems of claims by consumers against traders quickly and cheaply.
Different types of consumers may bring claims including natural persons, firms, small proprietary companies, bodies corporate under strata title schemes, incorporated associations, unincorporated bodies whose members are associated for a common purpose.
A consumer claim means claims by consumers, arising from a supply of goods or services to the consumer, whether under contract or not, for:
The time limit for making a claim is three years from the date of supply of the goods or services or from the date on which they ought to have been supplied.
The Tribunal has a monetary limits: claims must be for amounts less than $25,000.
To have your claim dealt with by the Fair Trading Tribunal, you will need to complete the prescribed form and file the form with the Registrar or Clerk of the Tribunal and pay the appropriate filing fee. The Registrar then gives notice of the claim to the other party and every person who it appears from the claim form to have sufficient interest in the resolution of the dispute. A time and place is then given for the parties to attend the Tribunal to have the matter heard.
Legal representation is not generally permitted before the Tribunal. You may nevertheless wish to seek the advice of a lawyer in completing the claim form.
Once a dispute is resolved in the Tribunal, it is not possible to appeal the Tribunal's decision.
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