eBay International AG v Creative Festival Entertainment Pty Ltd (2006) 170 FCR 450
Contract; contents; terms; inclusion of terms after formation
Facts: Tickets for the 2007 Big Day Out Concerts were offered for sale to the public. The tickets could be purchased online from two websites, or directly over-the counter from a number of physical outlets. In both cases the tickets were only delivered to the buyer after the purchase was completed and the tickets paid for. Printed on the tickets was a contractual term that sought to limit the buyer’s right to resell the ticket to another person at a profit. The motive for including this term was to prevent the practise of ‘scalping’. However, this term was not shown to buyers before they received their printed tickets.
Issue: Had the term limiting a purchaser’s right to resell their tickets become part of the contract?
Decision: The term had not become part of the contract.
Reason: The the ordinary rules of contract law apply to both online and over-the-counter purchases of the concert tickets. The rule is that, when a contract is entered into, any term which one party intends to make part of the contract only becomes binding on the other party if it is sufficiently brought to the attention of the other party before the contract is made. In the present case, the term was not sufficiently drawn to the attention of purchasers, either on the websites or in the over-the-counter sales, before the seller had accepted the buyer’s offer to buy the tickets. The term could not be added once the contract was already made.