This chapter explores the topic of contracts of guarantee. Contracts of guarantee are utilised in a range of consumer and business contexts to minimise a lender’s risk in situations where the borrower lacks sufficient assets to utilise as security, or where money is lent to inherently risky ventures. Guarantees enable access to credit in situations where the borrower lacks a credit history or cannot secure a loan because they lack assets. A lender to a corporation will require a guarantee because of the risks posed by the nature of business itself, and by use of the corporate structure, which prevents financiers accessing assets vested in shareholders and beneficiaries. Guarantees reduce the cost of borrowing by reducing the lender’s risk in providing loaned money, and by relieving the lender of the need to undertake costly risk assessments. Such costs would otherwise be passed on to the borrower through increased interest rates on borrowings.

This chapter explores the topic of product liability. The Explanatory Memorandum to the Trade Practice Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth) states that:

This chapter identifies and discusses the wide variety of business structures commonly found in the commercial landscape. All organisations that supply or acquire goods or services, whether for profit or not, must choose an appropriate business structure to ensure their longevity and successful operation. That choice will be influenced by a number of factors, such as the scope and nature of the organisation’s operations, its size, the risks and costs associated with its enterprises, and tax implications. The choice may even change in time as the organisation grows and its needs and challenges change. The principal forms of business structure are discussed in turn to provide a basis for understanding how each operates in practice.

This chapter deals with the common law of agency in Australia. Agency is a legal relationship of great utility in commercial life. In essence, an agent acts on behalf of another person, known as the principal, in order to achieve things that the principal finds difficult or inconvenient to do themselves. The chapter deals with the definition of an agent, the law pertaining to the formation of an agency relationship, the duties of agents and principals, and the liability of agents and principals to third parties.

This chapter addresses the topic of consumer guarantees. The consumer guarantees apply to any contract for the supply of goods or services to a consumer made after 1 January 2011. They replace the implied warranties and conditions in the former Trade Practices Act 1974 (Cth) (TPA). Goods are covered by the consumer guarantees not only if they are sold in trade or commerce and bought by a consumer, but also if they are second-hand, leased or hired. However, some consumer guarantees apply regardless of whether the goods are sold in trade or commerce, such as the guarantees as to title, undisturbed possession and undisclosed securities. The terms 'trade' or 'commerce' relate to a supplier’s or manufacturer’s business or professional activities, including a non-profit business or activity. There is a degree of complexity to the consumer guarantees scheme. In Scenic Tours Pty Ltd v Moore, Sackville AJA noted that this might undercut the purpose of the scheme. 'Given that the consumer guarantees are intended to provide protection to consumers in their dealings with service providers, the statutory regime is anything but straightforward. A consumer would need to be particularly well informed (or advised) to understand his or her rights under the regime.'

Part II - This brief introduction to Part 2 is designed to set the stage for the detailed chapters that follow, each of which examines various parts of the Australian Consumer Law of relevance to commercial law. Commercial law, unlike many other areas of law, is not driven by a single defining doctrinal idea; rather, it is driven by the relevance of selected legal topics to commercial life. There are certain ideas that are recurrent within commercial law, such as reasonableness, good faith and bad faith, the need to protect innocent parties, reliance and legitimate expectations. However, none of these ideas defines an entire area of law or forms the basis for the existence of those laws in the first place. Most areas of commercial law exist because the demands of commerce require a set of rules to regulate the interactions of the players within that field. Consumer law is no different, and its centrality to commercial life makes it a proper sub-field for study within commercial law.

This chapter considers the centrality of price to the contract for the sale of good. In particular, it examines the role of the price in the contract’s certainty of terms, the exceptions to this requirement, and the operation of those exceptions. The statutory provisions for determining a price in a contract that is silent on the term are examined, as are the leading cases. Contracts for the sale of goods are defined and distinguished from contracts in which goods are exchanged partly for a money consideration, and partly in exchange for other goods. The chapter also examines when such agreement may constitute a contract for the sale of goods, and when it constitutes a barter contract. The performance of the contract of sale is then examined in terms of the reciprocal obligations of payment and delivery. The wrongful performance of both payment and delivery is considered. The chapter then examines the remedies available to the buyer and the seller for breaches of payment or delivery, depending on whether the breach is of a condition or a warranty, and the defences to claims by either party against the other.

This chapter deals with unconscionable conduct in the context of commercial law. There are a number of statutory schemes that regulate unconscionable conduct in the commercial sphere. The Australian Consumer Law (ACL), contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA), provides a broad-ranging scheme that covers most commercial dealings within which unconscionable conduct may occur. Financial services and financial products are regulated under the Australian Securities and Investments Commission [ASIC] Act 2001 (Cth). The ASIC Act provided a statutory scheme regulating unconscionable conduct concerning financial services in trade or commerce. This chapter primarily deals with the unconscionable conduct regime set out by the ACL. The scheme has arguably the most direct application to commercial law as it governs the interactions between corporations and consumers and small businesses. The chapter first examines the equitable doctrine of unconscionable conduct, from which all the statutory regimes are derived, before considering ss 20–22 of the ACL.

Knowing your learner means more than being able to list the facts of their age, gender, socio-cultural demographics and report grades. This chapter’s fertile question invites you to consider what other factors need to be understood, and how we can go about gathering and acting upon this knowledge.

This chapter’s fertile question invites you to challenge the assumption that planning for learning primarily involves the production of a written plan for an activity, lesson or program of work. While the written plan is an important product of planning, it is the process of planning, rather than the final document, that determines the success of the learning experience.

Stories are an everyday part of our lives: we make sense of the world through the stories we hear and tell. This chapter explores how you can build on your experience in storytelling and your knowledge of expository writing to write thought-provoking case stories. You will learn about the benefits of dividing story writing into two processes: ‘writing it down’ or gathering observations, and ‘writing it up’ or drawing conclusions and making compositional decisions. Separating observations from conclusions enables you to create stories that are rich in layers of detail. These details make them more ‘real’, and better represent the complex web of conditions and participants’ perspectives that characterise teaching situations. After reviewing the elements of narrative, you will learn to use a simple five-step model, the ‘SISDA’ steps, to help select, develop and refine your case story. You will also explore three variants of the SISDA steps. Opportunities for collaboration in writing and refining case stories will be highlighted throughout the chapter.