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Buyer beware cause business is getting its way

Frank Zumbo

by Frank Zumbo

31 Mar 05:40am

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Filed under: Accc, Business, Consumer Protection, Contracts, Craig Emerson

27 comments

With consumers already being let down so badly on grocery issues by Mr Rudd and his Competition Minister Craig Emerson, you’d think that they would do better on basic consumer law issues. Well, you’d be very disappointed as Minister Emerson has presided over a continual watering down of consumer rights in the vital area of unfair contract terms.

Unfair contract terms may prevent the sale of items like this

We know or should know about unfair contract terms. We more commonly know them as the “fine print” in consumer contracts. These are the nasty terms of the contract that stack the contract well and truly in favour of the larger party, commonly a big business. Banks use unfair contract terms as do mobile phone companies. Car hire companies and your local gym also try to stack the contract terms in their favour.

Unfair contract terms are also found in contracts that small businesses may have with larger businesses. Small businesses also deal with banks, mobile phone companies and car hire companies. In this regard, small businesses are also consumers of basic goods and services. Sadly, small businesses can also get hit with unfair contract terms in franchise agreements, retail leases and supply agreements.

Such laws are not “fluffy” or some socialist conspiracy. These laws have long operated successfully and without fuss in the United Kingdom, Europe and in our very own Victoria.  Clearly, no one can say that commerce has come to a standstill in those places because of laws against unfair contract terms. So, let’s be clear that laws against unfair contract terms don’t threaten free enterprise, but rather strengthen it.

All too often consumers and small businesses are forced to sign standard form contracts where they have no ability to negotiate the terms of those contracts. Standard form contracts are “offered” on a take it or leave it basis. Have you ever tried to change the terms of a standard form contract? Ever suggested to the mobile phone company, bank, or car hire company that you would like to change contract terms? Well, try it some time and see what happens.

Of course, there will be those hardliners out there who will say that if you don’t like it you don’t have to sign the contract as you can simply go elsewhere. Well, what if the same unfair contract terms are found in all other contracts in the same industry. What then? The point is that unfair contract terms are like a cancer that spreads throughout an industry unless dealt with in an effective manner.

The reason is simply is that business generally don’t compete on most contract terms. So there is a market failure in relation to most contract terms as there is no competition on those terms. Yes, there is competition on key terms such as price, but on the remainder of the contract terms businesses like banks, mobile phone companies and car hire companies just act as cosy club where they merely copy one another’s contract terms.

As for the concept of “unfair” that has a legal meaning for the purposes of laws against unfair contract terms. Unfair is defined by reference to 2 key principles. Does the contract term represent a significant imbalance between the rights and obligations of the parties? In other words, is the contract term significantly lop-sided?

Secondly, does the contract term go beyond what is reasonably necessary to protect the legitimate interests of the larger party? Quite simply, the larger party can and is entitled to protect its legitimate interests, but cannot go further.

Despite such assurances and the considerable experience in the United Kingdom and more recently in Victoria, it’s very disappointing that the new national law dealing with unfair contract terms has been watered down by Minister Emerson from the longstanding Victorian law in the area.

The Victorian law, modelled on the United Kingdom law, represents best practice in dealing with unfair contract terms and should have just been copied at the Federal level. Instead, Minister Emerson has watered down the new national unfair contract terms law making it much harder to prove the existence of an unfair term. This watering down will clearly disadvantage consumers, and create business uncertainty as the national law differs in key respects from the Victorian law.

Businesses also could have been much better served by the new national unfair contract terms law. This author, for example, proposed the availability of “safe harbours” under the new national law. The provision of safe harbours would have enabled businesses to voluntarily approach the ACCC for approval of contracts or terms. Sadly, the Federal Government didn’t accept the proposal for safe harbours and, accordingly, the new national unfair contract terms law now fails both consumers and businesses.

One somewhat bright light on the issue of unfair contract terms emerged recently with Minister Chris Bowen’s decision to review the issue of unfair terms in insurance contracts.

While we certainly hope that Minister Bowen finally gets it right and knocks out unfair terms in insurance contracts, the sad reality is that Mr Rudd and his team have so far fumbled the ball very badly on consumer and small business issues.

With Labor having once been a pioneer on consumer law reform, it’s certainly time for Labor to get back on track and give consumers and small businesses the effective laws against unfair contract terms that they so urgently need.

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27 comments

Show oldest | newest first

    • Get it right! says:

      06:43am | 31/03/10

      Surely as an associate professor you would know that the word is “because”. “Cause” is “The producer of an effect, result, or consequence”. Considering the article is focusing on the idea that the word “unfair” can be manipulated - surely you would want to make sure the heading is grammatically accurate?

      Reply

    • Andrew says:

      06:02pm | 31/03/10

      You read this article and that’s what you came up with.

    • Get it Right says:

      11:15pm | 31/03/10

      And you read this article and all of the responses and all you could do was pick on mine? If you have a true opinion, then say something. Bagging out an individual by getting personal and not bringing anything new to the discussion is a pointless exercise - you aren’t encouraging debate, you aren’t adding anything to the argument - you are being petty, and not giving any reason for your response.. Yet you try to put me down by claiming I am doing something similar - yet I have real reasons for my post, whereas you have not commented to the debate or comments in a meaningfuly way, just a cheap shot. .

    • Sherlock says:

      06:47am | 31/03/10

      Another rant from Frank Zumbo who apparently feels he’s being ripped off by everyone. Sorry Frank but you can put me in the group of “those hardliners out there who will say that if you don’t like it you don’t have to sign the contract as you can simply go elsewhere” as I’d never sign a contract I felt was unfair.

      Perhaps the article would have a tad more credibility if instead of ranting about the existence of the “unfair contracts” you provided at least a single example.

      What’s the subject next week Frank? How the petrol companies are stealing your money or is it the banks turn again?

      Reply

    • Adam Diver says:

      08:26am | 31/03/10

      Nobody of normal standings reads all the contracts. And if they did they would probably need a lawyer to understand the legal jargon anyway. Perhaps with your wealth of knowledge and endless time to shop around for “fairer” contracts this is not an issue to you but I can assure you its an issue for a majority of Australians.

      However a single example would of been nice.

    • iansand says:

      10:36am | 31/03/10

      Oh come on Sherlock.  Do you have a mobile phone?  You have signed an unfair contract.  Have you hired a car?  You have signed an unfair contract.  Where you probably depart from the good Professor and myself is that we have read the contracts (I have even drafted some) and you haven’t.

    • Sherlock says:

      11:27am | 31/03/10

      I have a mobile phone. I pay my provider $9.95 per month and they give me $300 worth of calls at their standard rates. Perhaps you can inform me what’s unfair about that. I DID read the terms and conditions and I found nothing unfair. All I found is a company that wanted to sell me their service and were prepared to cut their margin to get my business.

      I rented a car for a month a few years ago. I also read the contract which basically said that for the agreed fee they would let me have the car for the agreed amount of time provided I returned it undamaged and with a full tank of petrol. If the car was accidentally damaged I agreed to pay the first $400 of the repairs. It seemed fair and reasonable at the time. Perhaps you can tell me where I was mistaken.

      Perhaps you wrote the contracts for the handful of companies that I have refused to deal with over the years because I wasn’t happy with the package they were offering me. I’m not just talking about price because you can always screw a few extra cents of the next bloke, In fact I tend to stay away from the person offering the cheapest price.

      In the last twenty years I’ve lost out a few times on a deal but it’s been an extremely rare event. Simple common sense has saved my backside a number of times. However, I found 99.999% of people I have dealt with over the years to be just like the rest of us in being simply out to make an honest dollar. I’m prepared to trust most people and it’s very rare that I’m disappointed.

      It’s a pity that your experiences obviously haven’t been the same.

    • An Ignorant Fool says:

      12:31pm | 31/03/10

      Yeah Sherlock,  you certainly know what you’re talking about !!

      Like you Sherlock, I’m just thrilled with the deal I get from the big banks and the big oil companies.

      And if that evil Zumbo dares to criticizes a single practice of either the big banks or the big oil companies next week, I hope you find the time to rip into Zumbo again with your clear and well thought through posts.

      For example, If I don’t like the deal that St George Bank are offering, I can always go to Westpac. This is real competition.

      I sleep soundly at night knowing there are defenders of; the big banks, the big oil companies, and unfair contract terms out there -  just like you Sherlock. More power to you.

      Signed, An Ignorant Fool

    • Sherlock says:

      01:13pm | 31/03/10

      An Ignorant Fool says: If I don’t like the deal that St George Bank are offering, I can always go to Westpac. This is real competition.

      Or you could have a look at the Cannes website where you will find over a 100 financial institutions all desperate for your business. Is 100+ enough competition for you?

      If you’re not happy with your bank than don’t make us listen to your incessant whinging. Get off your backside, tell your bank where they can go then find someone else who actually wants your business.

      It not a lack of competition, it’s a combination of laziness and stupidity by customers.

      I find the belief that there’s no competition in financial products totally astounding. You’re right. You are an ignorant fool.

    • A says:

      01:56pm | 31/03/10

      Thanks for agreeing with me Sherlock.

      You’re right, there is heaps of competition in the Australian banking sector - just ask any small business and they will readily agree with you that they have “hundreds” of financial institutions to choose from, all ready to loan money at very attractive rates !!

      And your right about the fact that Australian consumers pay the highest bank fees and charges in the world has nothing to with lack of competition in a highly concentrated market -  it’s all because of the stupidity and laziness of the Australian public (me and you excluded of course !!).

      But we don’t need a 100 financial institutions to choose from, as the theoretical economical literature tells us, just two competitors is more than ample. And for proof, just look at Woolworths/Coles.

      Australia may have the fastest accelerating supermarket prices in the developed world - but it is just a co-incidence that we also have the developed world’s most concentrated retail sector - again the cause is the stupidity of everyone except you and me.

      So Sherlock, keep up the good work !!

    • Sherlock says:

      02:50pm | 31/03/10

      It must be tough to be you. The banks are after you and you can’t even do the weekly shopping without being cheated.

      If you think there is no competition in business banking you’re very much mistaken. I get approached a couple of times a year and they keep trying to get me to change even after I tell them that I’m now at the stage where my banking business wouldn’t be profitable for them.

      You have a problem with Coles and Woolworths? Well where are the places doing it better?  Tell me where they are and I’ll shop there. It’s certainly not Aldi or Franklins. The small greengrocer, baker, fishmonger, deli etc are far more expensive than the big two supermarkets. They’re for when you’re looking for that higher quality that you’re prepared to pay extra for..

      So come on then. Instead of simply whinging tell me where these places are. If they don’t exist then why not. If Coles and Woolworths are so bad and ripping us off so much then why hasn’t a competitor come in that can do it better and cheaper. The day they arrive they can have me as a customer. Aldi have managed to open up over 200 new stores why can’t somebody else do it if they’re so much better.

      You must boil with rage at the unfairness of it all every time you use the ATM, fill up your car or even buy eggs. It must be so hard for you. I think I’ll pass on joining your world and I’ll stay in mine where businesses are actively competing for my dollars

    • Ziggy says:

      07:21am | 31/03/10

      Sherlock, you live in an idealistic world. The good prof is correct. Because of our small market we are vulnerable to all sorts of monopolistic practices which then become the norm. Small business must accept much of the blame as well. I cannot think of any small business organisation that works well as an effective lobby group. It is a virtual impossibility to get small businesses to group their power and wield it effectively - their mutual suspicions and down right avarice overcomes their desire for the long term good for all. When I retired from the corporate world I (and many qualified others) tried to group small business retailers together into a buying group - no luck! Can you imagine the power of a small business organisation to which they all belong and how they could wrest power away from the big companies? This would apply to all industry. Everything from buying terms, contracts, leases, consumer legislation,etc would be greatly influenced bu the pooled negotiating power. But the ones that do exist are just poor shadows basically state controlled and practising generalised ‘breakfast babble’ i.e. they think the odd breakfast networking meeting will save them! Until they can work together they will always be the victims of the big companies who will dictate the rules of the game. And we are all poorer for it as a result. Look at the farmers who gave away their co-ops to big business. Where are they now?
      Small business is still the main engine of the economy but it is rapidly shrinking and much of the blame is squarely on their shoulders.

      Reply

    • Sherlock says:

      08:52am | 31/03/10

      I don’t live in an idealistic world at all. In my 20 years plus running a small business I have had a few examples of people trying to impose unfair trading terms. I told them to change them and if they didn’t I found one of their competitors who would.

      Pooled negotiation may have their place but the fact remains that suppliers are still dealing with a number of small businesses that each have their own individual needs. Servicing those needs increase costs.

      Unlike Frank, it’s been my experience that the vast majority of people with either a product or service I use desperately want to sell it to me and therefore will do almost anything to do so. Most suppliers are just trying to make a quid like the rest of us and are more than prepared to negotiate a deal that’s fair to both parties. It’s been my experience that the bigger the company the more I can squeeze out of them as they look more at turnover than actual profit.

      I actually feel sorry for people who spend their lives feeling as though everybody else is out to rip them off. I don’t feel ripped of at the supermarket because the independent butcher, baker and fishmonger are even more expensive. If the supermarkets are ripping me off then why aren’t there other places selling the same stuff cheaper? The same with petrol and I find my bank to be extremely reasonable which is my we have had a long and profitable relationship.

    • AdamC says:

      09:43am | 31/03/10

      Adam D, whose fault is it if you don’t read contracts? Despite many people’s dogmatic assertions about ‘fine print’, most contracts are actually quite easy to understand. People would avoid a lot of heartache, and the need for legislation about unfair terms would be reduced, if people actually took a few minutes to read stuff before they signed it!

      Reply

    • DG says:

      10:56am | 31/03/10

      On topic: I recently was perusing the fine print on a current statement from my partners financial institution. The fine print included a statement to the effect that “this information is accurate as at 2 September 2008” for a current statement (note the date is not accurate but it was certainly more than 12 months ago). That’s about as useless as is possible - no intelligent person could rely on any representation made subject to such a disclaimer, but this was their attempt at complying with statutory requirements relating to the explanation of terms. By their own admission they state that their information may well be out of date and that they have made no attempt to ensure that it is current. But for some reason this is acceptable.

      It’s a farce.

      Reply

    • iansand says:

      11:21am | 31/03/10

      Did you pick up the “conclusive certificate” clause?  That one is a humdinger.  You owe them what they say you owe them.  End of debate, unless you can dismantle their completely opaque charging structures.  They become particularly opaque because they are entitled to charge the “administrative costs” of managing your default, and that price structure (assuming it is actually documented anywhere) will never be revealed to you so you can never outflank the “conclusive certificate”.  I wonder if Sherlock has read his overdraft facility documentation?

    • Sherlock says:

      01:29pm | 31/03/10

      iansand says:  I wonder if Sherlock has read his overdraft facility documentation?

      Not only did I read it many years ago I had my lawyers go over it as well. Ditto any mortgage I signed.

      Yet somehow I’ve had a long and profitable relationship with my bank. Furthermore the few times where I have had problems the bank has gone out of the way to help me. Delay a few payments here, extend the overdraft there, it’s never refused to assist where it could. However I always knew that if I ever got in too deep the bank could sell me up and the result wouldn’t be pretty.

      Even now when I actually have very little with them they still let me know that they want any future business I may have. Over the years I’m managed to negotiate some favourable deals on interest rates and bank fees with my bank.

      I followed the rules and was always quick to pop in for a chat if I ever encountered problems. I’ve have always felt I paid a fair market price for anything the bank has supplied me and the service has been outstanding. I certainly don’t feel my bank is ripping me off.

      You might want to note I said a fair market price. That doesn’t mean they’re the cheapest. I mentioned a bank comparison site in a post above. My bank falls in the middle of that table however I certainly wouldn’t change banks simply to save a few basis points off my interest rate. There’s more to a banking relationship than just a few dollars. Not being the cheapest on the market doesn’t mean you’re ripping people off.

    • iansand says:

      02:16pm | 31/03/10

      You don’t get it do you?  Just because you have a good relationship with your bank or other service providers does not mean that the terms of your contracts are not strongly biased against you, however favourable an interest rate you negotiated.

      I can assure you if the wheels fall off your relationship with your bank a very nasty thing will happen.  At some stage your account will be flicked from the Client Relationships Team (or some other touchy feely label) to the Recoveries Section.  You will receive no warning or hint that this is about to happen.  I can assure you that if it happens your opinion of your financial institution will change rather quickly.  Those attack dogs will rip you a new one so fast you will not realise it has happened.  They won’t care about the survival of your business or preserving the family home (if that is on the line).  Nor will they care about any continuing relationship with the bank.  Your business is gone.  Your home is gone.  And the terms of your facilities will make it easy for them.

      I have both done it on behalf of banks and had it done to clients.

    • Sherlock says:

      02:35pm | 31/03/10

      iansand says: Just because you have a good relationship with your bank or other service providers blah blah blah.

      Yeah I do get it. I thought that was obvious when I wrote

      “However I always knew that if I ever got in too deep the bank could sell me up and the result wouldn’t be pretty.”

      Also ten years of business lending made me well aware of how ruthless you need to be once the recovery decision is made. I’m also aware that you don’t get put into recovery at the first sign of trouble. If your upfront with your lender and can demonstrate you have a path out and your difficulties are only temporary that your bank will work with you.

      You people seem to be terrified that other people and businesses are out there simply to rip you off. I ask just how many times has this happened to you?

      In the thirty plus years since I left full time education I could count the times I’ve been ripped off on the fingers of one hand.

      I’m sorry but I’d rather live in my world where I can trust people rather than live in your world thinking everyone is out to get me.

    • iansand says:

      02:59pm | 31/03/10

      Then why do they need the clauses?  Why do they have the conclusive certificates that make it impossible to challenge the amount they claim?  Why do they make their administration charges so opaque so that you can never calculate what you owe?  Why should they be able to recover administration charges at all?  And why should they be able to charge compound interest at penalty rates on those charges?  And charge interest on capitalised interest?

      I think it is completely unconscionable that you are not able to work out how much you have to pay to discharge your debt.  But, if you fall into the pit of the Recoveries Section, that is the position in which you will find yourself.

    • Iva Tarbell says:

      12:59pm | 31/03/10

      Sherlock, since you live in a such a sheltered world of ideological self-delusion, and it’s self-evident from your posts that you haven’t got a clue of what goes in the world outside of the textbooks - and you think “unfair contract terms” are as common as fairies at the bottom of the garden, I’ll give you just onereal world example of an unfair contract term.

      A big supermarkets car-park in Sydney’s west offers free parking for the first 2 hours and then for every hour after, its $1 per hour.

      But in the fine print of the f"ree parking ticket”, it contains a term that if you fail to display the free ticket on your dashboard, you “agree” to pay an $80 penalty.

      Clearly this is an unfair term – and should be unlawful. 

      The concept of “buyer beware” may be suitable for the 17th century village market for haggling over the price of potatoes, but in today’s modern economy,  who has the time to read every single line of the fine print of every single contract - let alone understand the full legal consequences of each phrase ?

      Therefore a prohibition on unfair contract terms are an essential part of today’s economy.

      It’s only the spivs, crooks, charlatans, and those that wish to exploit undue market power (and their camp followers) that argue against a strong prohibition against unfair contract terms. 

      Sherlock, which group (or groups) do you belong to ?

      Reply

    • Sherlock says:

      01:47pm | 31/03/10

      So What? Because I don’t feel that my bank, insurance company, petrol station, supermarket, mobile phone company, Internet supplier etc etc are out to rip me off that I’m now some sort of conman. I’m glad I don’t live in your world Iva.

      If your supermarket example is correct than I agree it should be unlawful and I’d suggest that under current legal statutes it probably is or at least you’d have a case to say so in court. However, where did I say I was against prohibition against unfair contract terms?

      My point is more about how prevalent they are rather than if they exist. I’d also suggest what a lot of people deem to be unfair isn’t really unfair at all.

      Like I said earlier, I’ve found the vast majority of suppliers desperately want my business and will do anything they can , within reason, to get it. The bigger the company the better the deal you can normally negotiate.

      I’ve been ripped off more than once but these instances have been few and far between. I trust most people that I’ve done business with to do the right thing and I’m rarely disappointed. I’m sorry that your world is so different.

      BTW if a shopping centre fined my $80 for failing to observe something that I only possibly could have known if I read the back of the ticket they would be very sorry by the time I had finished with them. Not only would they have waived the fine they would have ended up paying me compensation. Don’t think for a second I’m a pushover and you don’t always need the law if you’re in the right.

    • Iva Tarbell says:

      03:06pm | 31/03/10

      @ Sherlock;
      “where did I say I was against prohibition against unfair contract terms?”

      Its really hard to know what your saying, or what point you are trying to make. And it’s apparent from your posts that you don’t even know yourself.

      Your so-called “point” Sherlock, .about “how prevalent they (unfair contract terms) are” is irrelevent.

      The fact is they do exist.

      And if you are NOT against prohibition against unfair contract terms, what is the point of your rants attacking Zumbo’s article ?

      No-one is saying every contract is a rip-off, the vast majority of companies that do business in Australia, do so on a fair and honest basis, and they would not be effected by any nationwide prohibition against unfair contract terms.

      The world has moved on from the rules of the village market, and as more and more sections of the Australian economy degenerate into duopolies and oligopolies, and as more economic power is concentrated in the hands of smallerl and smaller groups, the potential for abuse of that power grows, and a nationwide prohibition against unfair contract terms, like the Victorian and UK model is essential to give a level playing field to consumers and small business throughout Australia.

      The watered down version announced by the weak and insipid Minister Emerson is a sham.  Its just another example of Rudd government making big announcements and giving the impression of doing something, while doing nothing.

      If your happy “to be ripped off more than once” as you proudly announce -  then more fool you.

      But if your the type of person, that was caught by an unfair contract term)  - and that “they’d would be very sorry by the time you’d finished with them” , unless you are into violence, I’m sure you’d be the very type of person that would like to have an effective prohibtion against unfair contract terms as a weapon to fight with.

    • Kim says:

      02:17pm | 31/03/10

      I think you’re all being extremely unfair to Sherlock.  If you read any contracts, whether or not it has fine print, then you won’t be shocked when something goes against you.

      Iva, the supermarket you’re parking at is offerring you a free service.  All you have to do, is follow the fine print by displaying the free parking ticket.  How hard is that?  Getting free parking anywhere in Sydney is outstanding!  All Sherlock is saying is “read the contract”!  If you’re too busy to read the contract or don’t understand it or don’t agree with the terms, then don’t sign it or take advantage of the “free parking.”

      In defence of small business’, they only have contracts now because they’ve been ripped off too many times by consumers.  It’s called “covering your butts against the bad people who don’t pay for what they’ve bought”.

      Reply

    • Iva Tarbell says:

      03:22pm | 31/03/10

      Kim can you honestly say that you’ve read every word contract you entered into ?

      And if you have, can you honestly say that understood the correct interpretation of each term ?

      And I take it your happy that anyone that didn’t notice the fine print of the unfair contract term on the parking ticket has to pay $80 ?

      What about if it said they had to pay $180, or $1,800 ?

      What you say if it was your elderly mother that was unknowning hit with such an unfair contract term - tough luck mun,  pay out $1800 from your pension money ?

      Reply

    • H of SA says:

      03:56pm | 01/04/10

      If contracts we’re reasonable to read and undestand, then the number of jobs for lawyers would sink like a stone

      Reply

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      01:37am | 20/04/10

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