Business Law in Australia - Essay Example

This clearly makes the advertisement misleading and deceptive or as the addition of 1977 to the provision said "is likely to mislead or deceive'. This section provides the consumers protection against false company promises and advertisements. David Harland even believed that this law protected consumers from deceptive advertisement and promotional stuff.( Cornwall-Jones, 2000) Section 52 is perfectly applicable to the conduct of ABCD co, because it satisfies all the requirements of s 52. Firstly, the act is primarily applicable to corporations and ABCD co, is a corporation.

Secondly, the conduct has occurred in the field of " trade and commerce". Thirdly, the offending party, the wine company, was " engaged in the conduct" which means as it was the one that offered the tickets and later revoke it without any prior notice to its consumers; it was engaged in the misleading conduct. Fourthly, their conduct, which is under analysis, was misleading and deceptive. ABCD co may state that they did not intend to mislead or deceive, but it is of little importance as their conduct misled consumers like Bob and Sally.

The Carlill v. Carbolic Smoke ball case can be used to support their case. it is one of most famous cases in the common law of contracts. Carbolic Smoke Ball Company claimed to have made a product that could protect its users for contracting influenza and if someone would contract, the company would pay 100 pounds to its user. It became very popular in 1890s and was being sold throughout Britain and North America. For Mrs. Carlill the product did not work and she contracted influenza. She wrote to the company and she was told that advertisement wasn't serious.

So she filed a suit against them. The Carbolic Smoke Ball Company defended its case by saying that she neither informed them that she was using the product and wants its price in case it did not work or did they benefit from her use. However, the court overruled both the arguments because it defended Mrs. Carlill by saying that she had entered an agreement with the company as soon as she bought product and the product was " unilateral offer". Thus, as a result the company had to pay her the promised money.

It brought into the enforcement the law of " unilateral offers", where the consumer accepts the offer when he simply buys the product. As soon as the sale of product takes place, he comes into contract with the company and he is entitled to all offers, privileges, gifts being offered with the product. (" Carlill v. Carbolic Smoke Ball"), ("Carbolic Smoke Ball")If ABCD co may try to defend its position by showing the notice, in which the offer has been revoked and which appeared half an hour before Bob and Sally reached there or it may have already added an exclusion clause that would protect the company from any liability resulting from the breach.

With the help of section 52, the power of any such exclusion clause will be reduced to great extent. (Cornwall-Jones, 2000)However, section 52, does not provide any remedies for the losses incurred by the people. Part VI of the TPA provides recoveries for a breach of s 52, and it includes s 82 damages, s 87 court orders and s 80 injunctions. It is not sufficient that a certain advertisement is proved as misleading; the consumer has to bring into light the losses he incurred as a result of being misled.

Section 82 provides remedies for