E-Bay Australia Written Contract - Case Study Example

E-BAY AUSTRALIA WRITTEN CONTRACT by Student’s Name Code + Course Name Professor University City/State Date e-Bay Australia Written Contract Terms Written in Complicated Legal Language e-Bay Australia written contract governs the use of its services at its site as well as general principles of its international affiliates. The intention is to make the site a safe place to buy and sell and to promote trust among the users. Before becoming a member of eBay, users have to agree all the terms and conditions in the user agreement and the privacy policy. By accepting the agreement, the user is bound by it as well as the terms and conditions of other eBay websites if he or she uses those websites. Some of the complicated terms used in the contract include “sole discretion” “passive conduit” “eBay privacy policy is incorporated into this user agreement by reference”, “provide our web site and services on an “as is” basis”, “conditions express, implied or statutory”, “merchantability.” In addition, “non-excludable condition or warranty” “liability is limited to the greater of”, “severable”, and “retractable”. Sole discretion is a phrase consisting of two words; sole and discretion: ‘sole’ means pertaining to an individual whereas discretion means at one’s option or pleasure or the right or power to act or decide according to one’s own judgment; freedom of choice or judgment (Infoplease 2014). Combined sole discretion means keeping a secret. The phrase by reference means ‘in relation to or as regards’. Passive conduit comprise of two words ‘passive’ and ‘conduit’. Passive means without active resistance or response whereas conduit refers to something or someone that is used as a means of sending something from one person or place to another (Merriam-Webster 2014; Oxford English Dictionary 2008). The phrase “as is” means in the present existing condition without change or amend. Express conditions are those that are agreed between the parties themselves, implied conditions are those that are inferred from actions, signs or facts, or by silence or inaction whereas statutory are those stipulated by the law (e-lawresources.co.uk 2014; Gulshan 2012). A good case in point when companies conduct businesses in foreign countries-they impliedly agree to be bound by the statutes or laws of the foreign country and to be subject to the jurisdiction of the foreign state. The rationale that supports the implication of the implied condition is that a company that obtains benefits from carrying out businesses in a country should be subject to the courts and statutes of that country. Express conditions are evident when a patient directly communicates their consent to a physician by signing papers; it is supported through verbal or oral communication with the doctor. Merchantability refers to the state of being ready to be sold or bought; fit for market (Cambridge Advanced Learners Dictionary 2008). In contract law, an implied warranty of merchantability is used for certain assurances that are assumed while selling a product. It arises from a business transaction. The products have to be of at least average quality, packed appropriately, properly labeled and suitable for ordinary purposes for which it is manufactured and sold. For instance, soaps are considered merchantable it they clean. Generally, manufacturers or sellers are required by the law to produce goods of merchantable quality. In case an item fails to meet the proper standards, an injured party may sue the manufacturer or seller (Legal-dictionary 2014). Non-excludable condition or warranty refers to circumstances where non-paying customers cannot be prevented from accessing a good or service. By comparison, goods and services are excludable of they prevent customers or people who have not paid for them from accessing them. For instance, magazines or pay television subscriptions are excludable good and services respectively as persons who do not pay for subscription do not obtain them. Public and common goods such as national defense, free-to-air television, air, timber, fish stocks, and coals are examples of non-excludable goods. The phrase 'liability is limited to the greater of’ means that the users have unlimited liability to a particular extent; this is for their own good. Severable refers to something that can be separated from other things to which it is connected and maintain an independent and complete existence. This term describes a contract, which can be divided as well as apportioned into two or more components, which are not essentially dependent on one another. In contracts, it is used as a clause to allow for the terms of contract to be autonomous of each other, so that in case a term in the contract is considered unenforceable by a court, the whole contract will not be considered as unenforceable. For instance, in a case where a buyer and a seller reach an agreement that the seller will deliver seventy dozen caps and hats of different colors and sizes and then ships about sixty-five dozens to the buyer who refuses to the order. In case the seller sues the buyer for breach of contract, there is no evidence to prove that the contract required all the caps to be delivered at one time. The court can argue that the buyer could not escape liability as the seller did not ship five dozen caps and hats, as the order calling for caps and hats of different colors, sizes, and patterns constituted a “severable contract” (The Free Dictionary 2014). Retractable means that parties to a contract can withdraw from an offer or proposition before it has been accepted. The party making the offer is allowed to do so since it has not yet been accepted. Under these conditions, no principle or equity can require him or her to stick with it. A good case in point is a defendant guilty plea to an event. In various cases, he is allowed to retract it if he made the please in consequence of an error or by mistake. However, when prisoners plead guilty to charges of aggravated burglary and the sentence has already been passed, they are not permitted to retract the plea and change it to not guilty. Plain English Translation of the Terms The plain English translation of sole discretion is a trustworthy person who will keep information given to themselves. The person can be trusted with a piece of secret information and they will not tell anyone else. Passive conduit refers to an inactive channel or means; this means that eBay will play an inactive role in the undertaking. The statement, “eBay privacy policy is incorporated into this user agreement by reference,” means that the agreement does not go into detail about the privacy policy and only refers to it. The phrase “as is” basis means that the website and services are provided in the present condition, no changes. For instance, people often say that they take something ‘as it is’ or someone as he or she is. Express conditions require statements to be made between two people entering into a contract or undertaking business; they can be written down or stated by word of mouth. On the other hand, under implied conditions, no words are written down or stated; it is assumed that even without communication, the parties are aware of what they are accountable for or what they should do; it goes without saying or stating that they should observe certain rules or conditions. Statutory conditions are those stated by the law or statutes and parties have to act in accordance with them otherwise they will be violating such requirements and a court action can b brought against them. Merchantability entails offering good quality products and services to the customers; for instance people expect all products to be of good quality, to be well packaged; otherwise in case of harm they may sue a company for cause of bodily or any other harm. Under non-excludable conditions or warranty, people can access various goods or services even though they have not paid for them. The phrase “liability is limited to the greater of” means that the burden or accountability is limited to benefit the parties to a contract. The term severable means that something can be separated from other things to which it is a part of but remain separate (Longman English Dictionary 2014). In various business deals, some conditions are separate from the rest of the stipulations and hence do not depend on these stipulations. Retractable is derived from the word retract which means to take back or withdraw. For instance, when buying a certain product, the customer may decline to pay in case some conditions have not been fulfilled. Terms-Conditions versus Warranty The six terms in the eBay contract are merchantability, retractable, severable, non-excludable, as is, and sole discretion. A term is part of a standard form contract and can be classified as a condition or warranty (Koffman & McDonald 2010; Macdonald & Atkins 2014). Merchantability is a term because it is a condition to formation of the e-Bay contract. It is a term that is important to the contract and non-fulfillment of the term can lead to the termination of the contract. A condition is an important term without which, one or the other party would not enter into the contract and may lead to the termination of the contract and payment of damages (Poussard v Spiers [1876]; ). Retractable is a term as it is a condition that has to be fulfilled after formation of the contract, otherwise the contract will be terminated. It obligates a buyer and stipulates that they cannot withdraw from a bid once made except in special circumstances. Severable is a term as it is a condition for ensuring consumer protection once the party enters into a contract with e-bay. It will enable some provisions to be removed in case they are held unenforceable or invalid while the remaining ones shall be enforced. Non-excludable is a term as it a condition that will exclude e-bay from responsibility for bids that might go wrong in the performance of the contract. ‘As is’ is a term as it is a condition that is so important to the agreement of both parties; a breach will enable the user to treat the agreement as repudiated. This is in line with the definition of a condition by Fletcher Moulton LJ in Wallis sons & Wells v Pratt & Haynes [1910]. A breach of the condition can give the user a right to treat the contract as repudiated. Sole discretion is a term as it is a warranty, a breach of which may enable the user to claim damages, but not the right to refuse the products and retreat the agreement. A warranty is a less important term that a condition and the injured party only have the right to claim damages but cannot repudiate the contract (Goldring, Maher, Mckeough & Pearson 1998; Bettini v Gye [1876]; Campbell 2011). Merchantability, retractable, severable, non-excludable, and ‘as is’ are conditions as they can lead to termination of the contract. They limit the burden of accountability on the consumers in case they encounter problems while buying or selling a product. Sole discretion is a warranty as it provides the consumers with a resource if the site does not perform as promise; it may not lead to the nullification of the contract, however it can result in compensation in case the user experiences detriment. Nonetheless, like in Attwood v Lamont, these terms may put the user at an advantage due to the inequality in the bargaining power between the user and the site; the site dictates the terms on which the users may accept the position. Attwood v Lamont [1920] showed that it is difficult to convince the courts that the restrictions placed on the user by the site are reasonable and not in restraint of trade. In this case, severance was impossible as the court concluded that the clause in the contract had to be read as a single restriction and taken in its entirety. In Rentokil Pty Ltd v Lee (1995), the offending words were severed in the covenant due to the understanding that what remained was still a workable agreement and consistent with the intention of the parties. Implying or mandating warranties and condition by force of law into all consumer contracts is one means of facilitation high-level consumer protection (OECD 2010; International Legal Studies 2014). Reference List Attwood v Lamont [1920] 3 KB 571 Bettini v Gye [1876] 1 QBD 183. Cambridge Advanced Learners Dictionary 2008, Cambridge University Press. Print. Campbell, D 2011, International Agency and Distribution Law, 2ed, Center for International Legal Studies. Center for International Legal Studies 2014, International Consumer Protection, Juris Publishing Inc, New York. e-Bay Australia 2014, Registration-User Agreement, viewed September 22, 2014, http://pages.ebay.com.au/services/registration/reg-confirm.html e-lawresources 2014, Contents of a Contract-Terms, viewed September 19, 2014, http://www.e- lawresources.co.uk/Contents-of-a-contract.php Goldring, J, Maher, L, McKeough, J & Pearson, G 1998, Consumer Protection Law,5ed, The Federation Press. Gulshan, S 2012, Business Law, 4ed, Excel Books. Infoplease 2014, Dictionary, viewed September 19, 2014, dictionary.infoplease.com/ Koffman, L & MacDonald, E 2010, The Law of Contract, Oxford University Press, Oxford, UK. Longman English Dictionary 2014. Print. Merriam-Webster2014, Dictionary, viewed September 19, 2014, http://www.merriam- webster.com/dictionary Macdonald, E & Atkins, R 2014, Koffman and MacDonald’s Law of Contract, Oxford University Press, Oxford, UK. OECD 2010, Consumer Policy Toolkit, OECD Publishing. The Oxford English Dictionary 2008, 11ed. Print. Poussard v Spiers [1876] 1 QBD 410 Rentokil Pty Ltd v Lee [1995] 66 SASR 301 The Free Dictionary, Merchantable, viewed September 19, 2014, http://legal- dictionary.thefreedictionary.com/merchantability Wallis Sons & Wells v Pratt & Haynes [1910] 2 KB 1003. Read More