(b) That's right. Section 24 of the ACL says that terms are unfair if:
Firstly, the terms in question would cause a significant imbalance in the parties' contractual rights and duties.
Secondly, the terms in question are not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term.
Thirdly, if relied on, the term in question would cause a financial or other detriment to one of the parties.
In deciding whether particular terms are unfair, the court must consider the contract as a whole, and the extent to which the terms in question are transparent, that is, presented clearly and legibly, in plain language, and made available to the disadvantaged party.
In addition to these general principles, s 25 of the ACL sets out a number of examples of terms that are likely to be considered unfair. One example is a term that permits one of the parties, but not another, to avoid or limit the performance of the contract. Another example is a term that allows one party, but not another, to vary the terms of the contract. The unfairness of such terms is obvious, particularly when they are included in standard form agreements.
These provisions do not apply to terms that define the price and subject matter of the contract.
In the present case, although it was transparent, the term excluding liability for scratches and marks seems likely to qualify as an unfair term. It deprives A of an important contractual right, and it does not seem necessary to protect the seller because careful handling of the piano would avoid the problem. Also, a scratched piano would be worth less than an unscratched one.