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Fast Advancement In The Technological Field

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Fast Advancement In The Technological Field

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With the advancement in the technological field, terms and conditions of a contract are not actually read by the people who get affected due to it (QC, 2015). Contracts are signed and receipts are accepted or a tick-box on web portal is checked without considering the agreement requirements. In the article published in the Guardian in 2011, it was reported that terms and conditions are read only by 7 percent of the British people when they sign up for any products or services online(Smithers, 2011). It may be due to a general misconception among people that all consumer contracts have same terms and conditions (T&C) and there is no impact of these T&Cs on the individuals. The reason behind this was found to be the boring and long terms conditions of the contract. Furthermore, the contracts that are generally signed without understanding the terms and conditions are most likely to occur between the outsized companies and specific consumers (Menon, 2016). It might also be debated to be reflected through check boxes on the websites from where the products have been purchased that terms are non transferable and firm because dealings had not been performed with a person in real. The law actually understands this situation of the consumers in common law as well as in act (Woan, et al., 2015).
As per the general law, the signing of the contract specifies that the parties are agreed to the terms and conditions which are included in the contract (Consult Australia, 2017; Wiley, 2017; Australian Contract Law, 2016).
After the development and progress in the field of technology, local as well as international commercialization experienced huge expansion and with multiple commercial transactions, the requirement for legal certainty increased particularly for the transactions across the country. For the purpose of enabling the online formation of contracts, a comprehensive law might be required which could confirm the formation of the contract through electronic means. However, e-commerce law does not require regulations and codes and there is no specific regulator essential and available in most of the jurisdictions. All the parties to the contract are required to have the capacity and ability to enter into online contracts in accordance with the law and does not require any registration or to obtain particular accreditation. The general court system provides appropriate enforcement and suitable review of the formation of contracts online. However, the courts require certain changes to the rules and procedures regarding the admission of evidence admission and discovery procedures.  Jurisdiction usually subjects to territorial limits and that is why; its application to the internet becomes questionable when there might not be any territorial borders and physical presence in the forum. Thus, the intervention of Parliament and court would be the most appropriate way to deal with the application of contract law to the online transactions. The question of jurisdiction still arises for online transactions which can be divided into two parts i.e. the applicable law under which online transaction related dispute are required to be decided and the location of the forum, in which, the court is required to consider the dispute. The occurrence of a dispute between those who are in favor of jurisdiction being in the region of the consumer and those who favor of being in the region where the business is situated has become an issue of conflict. Different countries support different tests i.e. some prefer business location while some prefer consumer residence.   
In matters of e-commerce jurisdiction, laws of the country do not play a significant role as such but public international law and international and regional agreements and other agreements regarding treaties on an international level play a significant role. For this purpose, regulations and codes are also not required.  E-commerce or online transaction related legal activities do not require specific regulator and there is no availability of national or international regulator that could play a significant role in the aspects related to e-commerce law. There are certain international standards that have already been developed for the provision of jurisdiction in contracts that are being made online. One such standard is the “International Chamber of Commerce” that has publicized model clauses to be included in e-commercial contracts which prove to be beneficial in promoting the best practices and improving consistency in e-commerce transactions. The significant role of courts is in enforcing and for the purpose of review of the suitable jurisdiction in case of disputes regarding online transaction or e-commerce. In the absence of international and regional agreements and treaties, it becomes the responsibility of the court to decide the jurisdiction of e-commerce transactions. Furthermore, the legal infrastructure which is highly significant for international law requires effective performance of laws which are framed by the Parliament of the country itself. That is why; there is a requirement of effective legislation made by the Parliament and the courts to regulate that the laws be implemented by the nationals of the country.
In case of e-commerce transactions, the parties to the contract never meet each other which create obvious trust issues between them and also make it difficult to ensure that the parties would act lawfully and the transaction would be considered as legal. In presence of unequal bargaining power between the parties to the contract, particular concern related to such disputes arises. Online contracts are essential because it plays a significant role in e-commerce by specifying the terms and conditions which govern the transactions. Thus, there is a requirement of a specific body of law in order to ensure certainty in e-commerce and online contracting process. For example in Australia, Electronic Transaction Act 1999 has established that electronic communication is permissible for the contract formation purpose in the absence of agreement (Galexia, 2017).  
In Canada also, in electronic transactions as the exchange of offer and acceptance by the parties cannot be determined, in such situations, the contract is said to have completed when confirmation of acceptance of the offer is communicated to the offertory. The implementation of the law of contract to the online transactions is reasonable taking into consideration this approach of the government of different states.   
The UCTA was also introduced by the Parliament in order to control the integration and rationality of the exclusion clauses in the contracts and its authorities allow courts to state certain exclusion clauses ineffectually (Erdle, 2001). Parliament has required strengthening the courts ability to redress practical unfairness chiefly consumer contracts (Queen Mary Law Journal, 2013).  Therefore, it can be concluded that the action taken by the Parliament and courts of various nations in the process of implementation of contract law to the online transactions would be appropriate.
Clover has been stressed out due to her weight that is why her husband Darren gifted her a brand new “Pro Row” machine. Clover became so excited that she decided to immediately try her new rowing machine. She read the Instruction Manuel carefully and used the rowing machine as per the instruction. Although, because of some defect in the rower, the cable got broken down on the machine as a result of which Clover flight off the back of the rowing machine on the wall behind and fell severely on her back due to which she suffered broken tailbone and severe injuries on her lower back. Because of the injuries, Clover’slower back had to be operated.She was hospitalized for next few months. After the operation also, she will need a walking stick for rest of her life. In addition, she will not be able to lift or move without pain. Also because of this injury, she has would not be able to continue her job as a nurse. Days went  by, due to reducing sales, “ElecPar” publicized in numerous local and regional newspapers regarding the ‘Pro Row’ for sale at a discount price. The company also publicized that it had limited stock of Rowers at its stores and would be unable to resource the equipment in any sort of reasonable quantity.   

a) Will Clover be successful in a claim for reimbursement of cost incurred due to her injuries and if so from whom would she make the claim.
b) Is there a possibility of any action that could be taken against “ElecPar” for the declarations which have been made regarding the uses and advantages of the “Pro Row”
c) Is there a breach or flouting of the ACL for misleading claim made in advertisements that they have none or limited stock.

Applicable laws
Clover has entered into a contractual relationship with the Gym G retailer and manufacturer Elec Par Pty Ltd. As the company in Australia assembled the electronic rower under the brand name “Pro Row” with the parts imported from outside the country (AustLII, 2017).
There are few essential requirements for a contract to be valid in Australia. There must be a concluded agreement between the parties which should involve the acceptance of an offer. The parties to the contract are required to have the intention to have the legally binding agreement. Section 3 of ACL considers customer as an individual who obtains goods or services for personal, local or domestic usage or for the purpose of consumption that is priced below or above $40,000. Thus, Clover will be considered as a consumer under the consumer law of Australia. ACL deals with the consumer protections which are applicable generally to create broad standards of conduct in trade or commerce. According to Section 55, goods are required to be rationally suitable for a determination that a consumer wants through expression or by implications to the dealer or the manufacturer. The goods supplied to the consumers are required to be guaranteed through express or manufacturer’s warranties. As per ACL regulations, a consumer is required to be provided with a notification that all the products are given with statutory assurances that cannot be omitted by the law (Australian Government, 2010). Thus, Clover must also be provided with a warranty card at the time of purchasing the rowing machine from Gym G. If the husband of Clover had fulfilled all the requirements for the guarantee to be honored, the process for him to claim and the contact specifics of the person who provides the guarantee must have been informed to him (AustlII, 2017).
According to Section 138 of ACL, an action of liability can be brought against the manufacturer, if harm or damage has been agonized due to injuries sustained because of defective goods (Australian Competition and Consumer Commission , 2010). Clover was severely injured due to the rowing machine and thus, liability action can be taken against the manufacturer i.e. Elec Par company. In case, the manufacturers are unidentified, the suppliers are required to provide the information about the manufacturers to the consumers, if they fail, the suppliers are held responsible for providing recompense for the harm or damage to be grieved (Commonwealth of Australia , 2017). 
Section 274 states that consumers buy goods straight from the dealers and possess only unintended trades with the manufacturers. Therefore, the principal source of remedies under the legislative consumer assurances is suppliers. However, in this case, Clover got seriously injured and became physically impaired due to the accident. She can recover damages from the manufacturer as the reason of failure to conformto the assurancewhich is autonomous of the dealer. Therefore, Clover would be successful in claiming for compensation for the injuries and she should make a claim against the manufacturer.

B) Elec Par Company advertised on radio and fitness magazines about “Pro Row” that the rowing machine is good for the health of men and women. The advertisement stated that “Pro Row” will “reduce fat of the body, enhance muscle size by 30 percent, reduce 20 cms off hips and belly without dieting within a month and will display immediate consequences that last a lifespan”. However, in reality, the product did not offer any of these benefits. In addition to that ElecPar Pty Ltd publicized that the “Pro Row” has been recognized by and has been accepted for practice not only by the NSW Appropriateness Values but also by awell-known fitness celebrity Mikki Brown. It was proved that the product was not accepted by any regulatory body and also it was not being recommended by Mikki Brown.

According to Section 4 of ACL, misleading representations regarding future matters include performance or non-performance of any act and that too without any reasonable grounds. In this case, as Elec Par is considered as a manufacturer under Section 7 of ACL as the company assembled the rowing machine. All the information provided by the manufacturer in the advertisements was misleading and deceptive and ACL forbids misleading and deceptive behavior in trade or commerce under Section 18 of ACL. Remedies are required to be provided to the aggrieved consumers which include injunctions and damages under ACL (AustLII, 2017). Additionally, Section 29 of ACL forbids an individual from creating false or misleading representations related to the supply or the probability of supply of goods or services or in relation with the advancement in any way of the supply or utilization of the goods or services by the consumers. Under the category of false or misleading representations which are prohibited by the ACL, includes the sponsorships, approval, characteristics of performance, its uses, and benefits. Thus, Elec Par has made a false representation of the goods provided by the company through advertisement and stated that the machine was permitted by the NSW Fitness Standards and by the principal fitness model Mikki Brown.  Thus, the action can be taken against the ElecPar for the statements made by the company regarding the practices and benefits of the Pro Row (AustLII, 2017).

c) The company has contravened the consumer law of Australia regarding the advertisements despite knowing the fact that they possess nothing or inadequate storage of the Pro Row. Because of lagging sales, “Elec Par” publicized in numerous indigenous and regional newspapers the ‘Pro Row’ for deal at discount regardless of having nothing or inadequate numbers of ‘Pro Row’ Rowers at its supplies and having the understanding that it would not be able to supply the apparatus in number of reasonable quantity to the consumers. The company has made false statements in relation to the availability of goods along with false offers of discount to the consumers, thus, it had contravened the regulations of ACL. The company must be required to fulfill the demands of the consumers and if fails, it will have to compensate to the consumers (AustLII, 2017).

Taking into consideration, all the facts and issues along with the relevant legislation, it can be concluded that the position of Clover is strong and legal action can be taken against the manufacturer for which the company will be held liable for suitable compensation to Clover. Additionally, due to the injuries, Clover got operated on her back and still required a walking stick for the purpose of walking. Furthermore, she has not been able to continue working as a nurse for the rest of her life because of her inability to lift or move without pain. Thus, appropriate compensation must be paid to her by the manufacturer with the action taken by the court regarding the case. On the legal action taken by the Clover against the manufacturer, the court will provide appropriate compensation order in favor of Clover and will take strict action against the company for contravening the ACL.
AustLII, 2017. Competition And Consumer Act 2010. [Online] Available at: https://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/toc-sch2.html [Accessed 26 May 2017].
AustlII, 2017. Competition And Consumer Act 2010 – Schedule 2. [Online] Available at: https://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html#_Toc476304833 [Accessed 26 May 2017].
AustLII, 2017. Competition And Consumer Act 2010 – Schedule 2. [Online] Available at: https://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html#_Toc476304867 [Accessed 26 May 2017].
AustLII, 2017. Competition And Consumer Act 2010 – Schedule 2. [Online] Available at: https://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html#_Toc476304834 [Accessed 26 May 2017].
AustLII, 2017. Competition And Consumer Act 2010 – Schedule 2. [Online] Available at: https://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html [Accessed 26 May 2017].
Australian Competition and Consumer Commission , 2010. Legislation. [Online] Available at: https://www.accc.gov.au/about-us/australian-competition-consumer-commission/legislation [Accessed 26 May 2017].
Australian Contract Law, 2016. Australian Contract and Consumer Law. [Online] Available at: https://www.australiancontractlaw.com/ [Accessed 26 May 2017].
Australian Government, 2010. The Australian Consumer Law. [Online] Available at: https://publications.qld.gov.au/dataset/1b96f0f9-1d84-44b4-9448-7d871dbd3b9d/resource/a9a1cc75-3b45-44fb-a08d-33d1e6ac7c10/download/aclguidetoprovisions.pdf [Accessed 26 May 2017].
Christensen, S., 2001. Formation of Contracts by Email – Is it Just the Same as the Post?. Queensland University of Technology Law & Justice Journal , 1(1), pp. 22-38.
Commonwealth of Australia , 2017. Australian Consumer Law. [Online] Available at: https://consumerlaw.gov.au/ [Accessed 26 May 2017].
Consult Australia, 2017. Australian Contract Law. [Online] Available at: https://www.consultaustralia.com.au/docs/default-source/contracts-liability/Consult_Australia_Response_to_AGD_Discussion_Paper_on_Contract_Law_-_July_2012.pdf?sfvrsn=0 [Accessed 26 May 2017].
Erdle, M., 2001. On-Line Contracts: Electronic Creation Of Effective Contracts. [Online] Available at: https://www.dww.com/articles/online-contracts-electronic-creation-of-effective-contracts [Accessed 29 May 2017].
Galexia Pty Ltd, 2017. What is E-Commerce Legal Infrastructure?. [Online] Available at: https://www.galexia.com/public/research/articles/research_articles-pa04.html [Accessed 26 May 2017].
Galexia, 2017. What is E-Commerce Legal Infrastructure. [Online] Available at: https://www.galexia.com/public/research/articles/research_articles-pa04.html [Accessed 29 May 2017].
Menon, S., 2016. The Interpretation of Documents: Saying what they Mean or Meaning what they Say. [Online] Available at: https://www.supremecourt.gov.sg/docs/default-source/default-document-library/sjc/the-interpretation-of-documents—saying-what-they-mean-or-meaning-what-they-say.pdf [Accessed 27 May 2017].
QC, H. B., 2015. Scope of application and general approach of the new rules for contracts in the digital environment, s.l.: European Union.
Queen Mary Law Journal, 2013. Annual Essay Contest: First Year Contract Law , s.l.: Queen Mary Law Journal.
Smithers, R., 2011. Terms and conditions: not reading the small print can mean big problems. [Online] Available at: https://www.guardian.co.uk/money/2011/may/11/terms-conditions-small-print-bigproblems [Accessed 26 May 2017].
Wiley, 2017. Legal requirements of small. [Online] Available at: https://www.wiley.com/legacy/Australia/PageProofs/BUS_MAN/1_2/KC_VCE_BusMgmnt_U1&2_3E_c08__WEB.pdf [Accessed 27 May 2017].
Woan, L. P., Koh, P. & Ho, T. C., 2015. Ch.08 The Law of Contract. [Online] Available at: https://www.singaporelaw.sg/sglaw/laws-of-singapore/commercial-law/chapter-8 [Accessed 26 May 2017].

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