Brent and Rocky Tours
Unjust Contracts: A Study of the Contract Between Brent and Rocky Tours
ULO 1: Apply key principles of law for commerce to recognize and evaluate legal issues.
ULO 2: Analyse and interpret legal issues in domestic and international contexts.
ULO 3: Use appropriate digital technologies to search retrieve and apply relevant information law for commerce.
Unjust Contracts: A Study of the Contract Between Brent and Rocky Tours
Consumer protection has been heralded to be one of the most important laws in Australia. The protection accorded to each and every consumer is fundamental to the growth of the economy and also to the security and comfort of the people in general. The simple knowledge and comfort that the consumer is protected from malicious business owners who would use every means to make profit, regardless of the fact that they may be contributing to the suffering of their consumers. Consumer protection laws are designed to protect the public from such businesses and companies that would otherwise cause havoc to the Australian economy if they remain unchecked.
Companies have, however, tried to find new and more sophisticated ways to be able to protect themselves legally from any form of suits due to unhappy customers who may want to sue the companies. The companies thus create terms and conditions that would be used to protect themselves from such consumers. Majority of these documents are quite long and tedious to read. Furthermore, they are created with a lot of legal terminologies and language within that majority of consumers may not be able to understand what is within. It is also quite well known that the vast majority of consumers do not read through the terms and conditions sections and just agree to the terms.
This was the case with Brent, as he was not willing to go through the vast terms and conditions document, and thus accepted the terms and conditions anyway. Legally, his consent to the terms and conditions would still be applicable, whether or not he had read through the document or not. The service provider, in this case Rocky Tours, was operating on the assumption that Brent had read through the terms and conditions of the agreement and therefore understood what he was getting into. Rocky was also operating under the assumption that all the information provided by Brent was factual and true, and therefore Brent had the intention of getting into a legal agreement with Rocky Tours.
The contract between Rocky Tours and Brent can be said to have been legal. Rocky Tours placed an invitation to treat in the form of an advertisement within their website that was used to explain the different tour packages and how much each would cost. Brent, by entering his details and accepting the terms and conditions of the contract made an offer to Rocky Tours to be part of the Tour to Canada that included rafting. Rocky Tours accepted the contract and therefore put Brent and his wife Kate onto the tour. Brent was able to pay the consideration of $12000 dollars, thereby making the contract between Brent and Rocky Tours actionable under the laws.
However, during the negotiation phase of the contract, there were certain warranties and concerns that Brent brought forward. Brent made it clear to the online representative that his wife Kate could not swim, and therefore the water part of the tour would not be as convenient for the both of them as is. The attendant however told Brent that they did not have to get onto the boats if they did not want to. Brent accepted and all through was operating on the knowledge that they would be able to avoid the water sections but enjoy the rest of the tour.
Brent, during the negotiation with the online attendant, had made it clear that Kate did not know how to swim and also could not walk well thus it would be very risky to put her in a boat on a river. In the case of an emergency, Brent argued, it would be difficult to save Kate due to the fact that she cannot swim. Rocky Tours did not put this into consideration and instead placed Brent and Kate into a situation whereby they had to get onto the boats even though Kate could not swim. Brent made it clear to the tour guides at the river that Kate could not swim and therefore could not get onto the rafts. However, the tour guides informed Brent and Kate that they were in the middle of the wilderness and therefore there was no other choice other than getting onto the rafts and sailing down the river or remaining in the wilderness.
Due to the lack of available options, Kate and Brent were forced to get onto the raft and sail down the river. Unfortunately, the worst happened and Kate drowned. The terms and conditions created during the formation of the contract between Brent and Rocky tours had already been breached by the time the tour guides informed Brent that there was no option other than getting onto the rafts. This was contrary to the initial agreement between Brent and the online attendant when he was asking about the tour.
It can be argued that the agreement between Brent and Rocky tours contained certain implied terms, in particular, the fact that the couple would not be able to go for the raft based section of the tour (Carter, 2010, p. 221). The online attendant agreed to the terms and understood that the couple would not be able to take part in that part of the Tour. Furthermore, the online attendant further urged Brent to take up the tour, stating that there would be no problem relating to the fact that the couple did not want to take part in the raft section of the tour. Brent was therefore unduly influenced by the attendant to take up the contract, due to the fact that the attendant, acting as an agent of Rocky Tours, provided Brent with information that was later to be found to be false.
Under common law, the service provider is expected to take up all the necessary measures in order to be able to implement any implied terms in a contract (Jetstar Airways Pty Ltd v Jetstar Airways Pty Ltd v Elizabeth Winifred Free, 2008, pp. 100-144). This provision is expected to provide a layer of protection to the consumers who may be susceptible to undue influence by the employees and agents of particular firms that they may want to seek services from. With this in mind, it is required that the firm would have to implement the terms as agreed between Brent and the online attendant.
Furthermore, common law provides that every contract must be executed with the safety of the consumer as well as the service provider in mind. In the case of Astley v. Austrust (1999) it was held that the provision of ill advice by the law firm to the consumer in this case was considered as a breach of the implied terms of the contract and therefore the law firm was liable. The tour guide provided advice to Brent that there was no other viable way to get out of the wilderness other than the rafts, further assuring them that the rafts were extremely safe and secure and that the risk of any unforeseeable event occurring was minimal. Unfortunately, Kate was not able to swim and drowned in the river. Based on the case above, Rocky Tours can be assumed to be liable. The online attendant had also provided information to Brent that they would not have to go onto the raft. This implied term was not upheld, which ultimately led to the loss of Kate during the tour.
Several acts and legislation have provisions that seek to protect consumers from rogue businessmen and companies. The most notable of these is the Competition and Consumer Act (2010, Section 74) which provides that each and every contract is expected to be treated and acted upon with all the required skill and care, making sure that each and every term within the contract as well as implied terms are executed as agreed between the parties. Furthermore, the Contracts Review Act also provides for incidents where parties may seek regress due to unjust contracts. In order for one to term a contract as unjust, there should be consideration as to what the public policy on such matters is at the time. Furthermore, it is the duty of the court to properly look into the steps that were taken in the creation of the contract and whether the aggrieved party was actually at a disadvantage during the creation of the contract.
With all these facts in mind, it is clear that Brent
was on the raw side of the deal. Under the laws provided, it is clear that
there was foul play and that Rocky Tours did not honor their end of the
agreement. Rocky Limited also did not put into consideration the special needs
of Brent and Kate, of which they had agreed to prior to the acceptance of the
contract between the two parties. The use of undue influence also paid a part
in convincing Brent to enter into the contract, of which the company was aware
of and still did not take the necessary steps to enable Kate enjoy the tour
without having to go onto the rafts. Therefore, Rocky Tours should be held
responsible due to the gross negligence as illustrated within the case.
Carter, J. W., 2010. The Commercial Side of Australian Consumer Protection Law. Journal of Contract Law, Volume 26, pp. 221-238.
Jetstar Airways Pty Ltd v Jetstar Airways Pty Ltd v Elizabeth Winifred Free (2008) VSC 539.
Contracts Review Act, 1980 (NSW)
Competition and Consumer Act, 2010 (Cth)