Like most other Common Law countries, Australia currently lacks a comprehensive code addressing the legal issues falling within the scope of this book. Instead, in addition to the relevant case law, the reader must take account of a patchwork of partly overlapping legislative initiatives. While there is a range of different pieces of legislation that are of relevance for the law of obligations in Australia, there are two legislative initiatives of primary importance: the Sale of Goods Acts, and the Competition and Consumer Act 2010 (Cth).

In writing the book, a conscious decision was made to reproduce the relevant legislative provisions in full. This approach was taken with an aim to ensure a greater familiarity with, and deeper understanding of, the relevant provisions. Such a familiarity and understanding cannot be gained merely by reading a summary of the relevant provisions, and students must be trained in identifying the core of lengthy and complex statutory provisions. In the light of the extraordinarily complex drafting style used for parts of the Competition and Consumer Act 2010 (Cth), few statutes are better suited for such training.

Further, the reader of a summary is likely to miss out on some aspects of the statutory provision that has been summarised. Indeed, if a statutory provision can be summarised (i.e., expressed more briefly), without any loss of content or nuances, then the original drafting of that provision is poorly done. Therefore, most of the time, it is preferable to read the original provision rather than a summary of it.

1.3.1 The Sale of Goods Acts

The Sale of Goods Acts are primarily discussed in the context of so-called implied terms (see Chapter 2 below). These are terms that, although not expressly (by the articulated choice of the parties) forming part of the contract, nevertheless form part of it by implication.

The Sale of Goods Acts found in Queensland,^[1] New South Wales,^[2] Victoria,^[3] South Australia,^[4] Western Australia,^[5] the Australian Capital territory,^[6] the Northern territory^[7] and Tasmania,^[8] are all mirrored upon the Sale of Goods Act 1893 (UK). This UK Act is, in turn, largely based on (and indeed is, to an extent, a codification of) the so-called lex mercatoria – the custom and usage of merchants, which were, as a result of judicial recognition, accepted into the common law of England. The Sale of Goods Act of Queensland, which is the focal point below, dates back to 1896, but has been amended several times since.

The Sale of Goods Act (SGA) addresses a range of legal issues associated with the sale of goods. For example, it contains rules regarding formation of contracts, effect of contracts (e.g., passing of risk), performance of contracts and effect of breaches. As far as this book is concerned, however, the Act is only relevant in relation to so-called implied terms (discussed in 2.5).

The scope of the SGA could be said to be defined in its s. 4(1): “A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the ‘price’.” This provision is discussed in more detail below (see 2.5.1).  Now Chapter 2.5