|
It is important to understand that the law of sale, now contained in the sale of goods legislation, was originally developed by the courts with contracts between business persons in mind, rather than contracts in which at least one of the parties was contracting as a private person or consumer.
This fact is important because it explains why the rules of sale were developed on the assumption that the contracting parties were dealing as equals and were capable of looking after their own best interests. The terms that are put into sale contracts by the sale of goods legislation only become part of the contract to fill gaps in the agreed terms and are easily displaced by different terms agreed to by the parties.
This laissez-faire (hands-off) approach works well enough in transactions where the parties have roughly equal bargaining power, but not very well when there is an imbalance in bargaining power, which is often the case of consumer transactions. The interests of consumers are not well protected by the sale of goods legislation. This is why, although the sale of goods legislation applies to both commercial and consumer transactions, the Australian Consumer Law (ACL) provides a better degree of protection to consumers who enter into contracts for goods or services. These special provisions are dealt with in section 10 of this module.
|