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From 9 November 2023, Australia’s unfair contract terms regime will change. The modifications include broadening the unfair contract terms regime to “small businesses” with less than 100 workers or a $10 million annual revenue threshold. There will also be new civil penalty provisions for non-compliance.
How can businesses approach legal counsel to ensure they’re not in breach of the law? It begins with understanding your obligation as non-lawyers to understand the fundamentals of contract law and how it can shape your business decisions.
Contract law is at the bedrock of the legal system in Australia, governing agreements between parties and providing a framework for ensuring fairness and enforceability. While it may seem complex and intimidating to non-lawyers, understanding the basics of contract law is essential for anyone involved in business transactions or legal agreements.
Contracts, in their simplest form, are legally binding agreements between two or more parties. To be enforceable, a contract must meet certain essential elements, including an offer, acceptance, consideration, and an intention to create legal relations.
Statutory vs Common Law
In Australia, contract law is primarily derived from both statutory law and common law. Statutory law refers to laws enacted by the government, while common law is derived from legal precedents established by courts.
The most prominent statute governing contracts is the Australian Consumer Law (ACL), which regulates consumer contracts and protects individuals from unfair terms. It is crucial to understand the ACL’s implications on their contractual relationships, particularly when dealing with consumers.
On the other hand, common law principles are established through precedents set by higher courts. They serve as a guide for interpreting contractual terms and resolving disputes. Common law provides a foundation for understanding contractual rights and obligations.
Contract objectives are the goals or purposes that parties aim to achieve through their agreements. These objectives play a crucial role in determining the enforceability and interpretation of contracts. Clear and careful definition and consideration of objectives are essential to creating effective agreements.
Common contract objectives include the exchange of goods or services, the allocation of risks and liabilities, the protection of intellectual property rights, and the establishment of clear performance standards.
Risk management involves identifying, evaluating, and mitigating potential risks associated with contractual relationships. Contract drafters must be proactive in managing risks to protect their interests and minimise the likelihood of disputes or legal issues arising.
One crucial aspect of risk management is the inclusion of appropriate warranties and representations in contracts. Warranties are assurances provided by one party to another regarding certain facts or conditions, while representations are statements made during contract negotiations. Both must be accurate, truthful, and adequately documented to avoid any future liabilities or disputes.
Another essential risk management strategy is the inclusion of indemnity clauses. These clauses allocate liability between the parties in the event of specified losses or damages. The scope and limitations of indemnity clauses must be carefully considered to remove any loopholes in the fulfilment of contractual obligations.
Disputes are an unfortunate reality in contractual relationships. Clear and comprehensive documentation is crucial in resolving them and providing evidence of the parties’ intentions and obligations.
When a dispute arises, the terms of the contract and any supporting documentation, such as emails or correspondence must be carefully reviewed. In cases where informal negotiations fail to resolve the dispute, legal remedies may be considered, such as initiating legal proceedings or enforcing contractual rights. It is essential to understand the legal procedures and time limits associated with dispute resolution to protect your rights effectively.
For further guidance and assistance with contract law in Australia, consult a qualified legal professional to ensure your agreements are robust and legally enforceable. However, familiarisation with the key principles and concepts in contract law through webinars and training shall definitely prove helpful in demystifying the gap that exists between lawyers and non-lawyers.
Informa Corporate Learning are leaders in training, knowledge and performance improvement, servicing up to 30+ industry sectors. Our Contracts & Procurement Portfolio boasts one of the most well designed, robust training programs in Australia featuring, Contract Law Fundamentals for Non-Lawyers, Contract Law Masterclass for Non-Lawyers and Contract Claims, Variations and Disputes Masterclass, to name a few. See our list of Contracts & Procurement courses. For more information, please email email@example.com.