TPB503TA Contract and consumer law
Added on 2021-05-25
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CPD course TPB503TA Contract and consumer law
Copyright © 2020 AAMC Training Group Pty Ltd All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means without permission in writing from the author, AAMC Training Group. Legal Notices/Disclaimer While every attempt has been made to verify the information provided within this publication. AAMC Training does not accept any liability for any errors, omissions, lack of care, default, negligence or contrary interpretation of the subject matter herein. This publication is not intended for use as a source of legal or accounting advice. AAMC Training stresses that the information contained herein is subject to varying State and Local laws and regulations. All users of the information contained in this publication are advised to confirm applicable laws and regulations prior to using the information in their business. No liability is accepted for any information or services which may appear in any other format. No responsibility is taken for any information or services which may appear on any linked websites. The user of this publication assumes sole responsibility for the use of these materials and information. AAMC Training assume no responsibility or liability for any loss or damage of any kind whatsoever arising as a result of any user of these materials and information acting on the opinions, advice and recommendation expressly or implicitly detailed herein. AAMC Training expressly do not guarantee any results you may or may not get as a result of following the recommendations and advice contain herein. The users must test everything for themselves prior to implementation. Last updated: 18-11-2020 Version 1.2
TPB503TA Contract and consumer law Learning Guide V1.2 © AAMC Training Group ContentsContents Section 1Introduction 1Section 2Legal aspects of contract and consumer law 2Identifying client’s circumstances 2Contract and consumer law and related legislation, regulation and practice 3Types of relevant contract and consumer transactions 12Legal principles applying to contract and consumer matters 15Section 3Legal issues and risks 26Risks in contract and consumer law application 26Impact of legal issues on business structure types 36Client circumstances and risk implication 40Section 4Applying contract and consumer law to clients 41Collecting client information 41Interpreting, analysing, and processing available information 44Seeking a specialist’s advice and guidance 46Giving advice to clients 46Section 5Maintain legal knowledge 48Reviewing circumstances and applying changes 48Reviewing legal sources regularly 48Keeping up with changes 49
TPB503TA Contract and consumer law Learning Guide V1.2 © AAMC Training Group 1Section 1 Introduction This course describes the skills and knowledge required to research, analyse and apply legal principles to provide advice on contract and consumer law implications to clients. It applies to individuals whose job role involves the application of knowledge of contract and consumer law in the workplace. At the end of this course, you will be able to: Research legal aspects of contract and consumer law Analyse legal issues and risks associated with the operation of a business Apply knowledge of contract and consumer law to client circumstances Maintain legal knowledge The source references noted in the learner guide provide a good starting point for the student to undertake their own research by accessing full articles and reports to extend their reading. NOTE: The learner guide study notes are not provided to be definitive but as a guide. Students are required to supplement learner guide notes with their own research. The learner guide study notes are not to be considered definitive but as a guide only. Vermeesch and Lindgren’s Business Law of Australia (LBLA) may be a helpful reference, with more up-to-date information available on the internet.
Learning Guide V1.2 © AAMC Training Group 2Section 2 Legal aspects of contract and consumer law Identifying client’s circumstances Although legal practitioners may sometimes receive an oral request for contract and consumer law advice, it is more usual for such a request to be written, either in a letter or in an email. This presents the practitioner with the first challenge, which is to determine what legal questions the client really wants answered. Some clients provide clear questions, but on other occasions it is necessary to extract from the client’s letter precisely what they are asking. However, because the questions that must be answered are the questions the client wants answering (rather than the ones the practitioner thinks they should have asked), it may be necessary to contact the client to clarify if the practitioner’s additional questions correspond with the client’s original questions. It may be necessary to obtain confirmation from the client that they are happy to include questions additional to those they asked, if the practitioner thinks this is necessary to give full and complete legal advice. This process of settling client questions is important because practitioners must present the advice in a question and answer format. This is an important skill, because the practitioner has to abstract the relevant facts from the irrelevant, identify the legal issues, state the law relevant to the issues, apply the law to the facts and then come to a conclusion on the issues. Other important points relevant to client’s circumstances are: If the client’s request for advice contains a reference number, that number should be referenced in the advice provided The advice should be addressed to the person whom the client has nominated as recipient which may be a different person from the person who contacted the practitioner for the advice The advice should be preceded by a summary, often called ‘Background’, of the client’s questions, circumstances and any relevant statutes upon which they want advice After the ‘Background’ section comes the reasoned answers to the client’s specific questions. Each of the client’s questions is usually reproduced in bold.
Learning Guide V1.2 © AAMC Training Group 3It is important to note that since, other than in the most clear-cut of cases, no-one can give legal advice with absolute certainty, advices are peppered with phrases such as ‘in our opinion’, ‘it is our view’, ‘although an arguement could be made to the contrary’, ‘although a court might find otherwise’, ‘we think it more likely than not’, ‘it is probable that’, etc. In the main body of the advice the practitioner will use the skills of legal analysis to answer problem questions - that is, applying the law to the issues (the client’s questions) leading to a conclusion. In this part of the advice it is vitally important to analyse all relevant legal arguements - including those that are adverse to the client, and those which the practitioner ultimately rejects, because otherwise the legal advice will not be comprehensive. Only if the client has been presented with all the pros and cons of their legal position can they make fully informed decisions about what course of action to adopt. Contract and consumer law and related legislation, regulation and practice In answering legal questions all relevant sources of law must be considered, including statutes and case law, as well as a review of relevant documents, including written contracts. It is relatively straightforward to consider a contract on its own merits, simply by reading it. An understanding of its validity, however, requires an understanding of case law relating to the elements of contracts and specific statutes which may be relevant, such as for the sale of land or with respect to superannuation. This section starts with a consideration of the source of law. It then continues with consideration of specific transactions and concludes with a review of relevant legal principles. The legal system A common law system is the basis of our legal system. A common law system is based on case law and judicial precedent. New legislation can be introduced to replace or overrides relevant case law. This legislation is then interpreted and tested by the courts, which leads to new case law and judicial precedent. The law of contract developed in common law but has been strongly influenced by statute, especially in the world of property dealings and consumer law. Much of the legislation in this area enacted or clarified tortious remedies already in existence.
Learning Guide V1.2 © AAMC Training Group 4When reviewing commercial law, it is therefore important to know how to research the current statute together with the case law and any other appropriate material, such as regulations. There are a number of principles that need to be understood within Australia’s common law system. The first is the doctrine of ‘separation of powers’. This doctrine separates those that make the laws (legislative), those that put the laws into operation (executive) and those that interpret the laws (judiciary). Commonwealth legislative power is vested in the federal parliament. The executive is the federal ministers. Another doctrine within common law is that of ‘precedent’. A precedent is a previous court case which another court is bound to follow by deciding a subsequent case in the same way. The use of precedents is a way of ensuring that legislation is interpreted in a consistent manner. The rules involved in this doctrine of judicial precedent are: In order to understand a particular legal precedent, it will be necessary to conduct research on relevant cases. The most comprehensive online Australian database of law reports is the Australasian Legal Information Institute. Access the ALII website at: http://www.austlii.edu.au/. This database can be used to search for any Federal or State legislation, or case after 1995, or review various law reports. Alternatively, there are many law libraries around Australia where hard copy reports can be accessed.
Learning Guide V1.2 © AAMC Training Group 5A case title can provide important information. For example, look at the following case in LBLA 29.39. Case Detail Definition/Explanation Commissioner for Special Purposes of Income Tax Plaintiff / Claimant Pemsel Defendant The year the case was decided The court hearing the case The page where it appears in the law reports The information provided in the case title will enable the full report to be located. The full report will contain the following details: Name of the plaintiff/claimant Name of the defendant Court details Names of the judges Hearing and judgement dates Catchwords Reasons for the judgement Orders Commercial Law Many areas of law are relevant to commerce, but within this topic, commercial law specifically includes the law of contracts, torts and consumer law. There is a great deal of overlap in these areas. For example, Australian Consumer Law addresses unfair contract terms. A contract is perhaps the best starting place, as contractual relationships underpin the commercial world. Contract law is the body of general rules which governs the enforcement of promises. In Australia, the rules of contract law are mainly derived from judges’ decisions in court cases—known as ‘common law’ or ‘case law’—as well as legislation. These rules apply to all types of agreements. A commercial deal between two businesses, a sale of land, and a purchase of a new TV are all governed by the rules of contract law. Parties can usually use contract law to enforce the terms of a contract—even if those terms are unfair—on the basis that both parties have freely chosen to enter the bargain. However, consumers are often in a relatively weak position and lack the ability to protect themselves against dishonesty or exploitative terms. To address this imbalance, many countries have passed legislation to give consumers additional legal protection. Consumer protection laws supplement contract law and in some circumstances override contract law rules.
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