Main Body

2.7 Comparing the SGA implied terms and the ACL’s consumer guarantees

To conclude the discussion of the implied terms under the SGA and the consumer guarantees under the ACL, it is useful to summarise the differences.

 

Despite all these differences, the two Acts clearly overlap, and in many instances, an aggrieved party can rely on either, or both, of these two Acts for the implication of terms into the contract.

Australian Consumer Law (ACL) Sales of Goods Acts (SGA)
Limited to ‘consumers’ as buyers NO NO
Limited to ‘corporations as sellers’ NO NO
Covers Services YES NO
Exclusion of Terms NO Any or all of the implied terms may be expressly excluded s 56
Right of Termination Wide (i.e., within a reasonable time) Narrow (i.e., generally, right is lost when a buyer has accepted goods and the property has passed).
Sale/supply Wide, covering many forms of supply Narrow, only covering sale
Scope National State (Qld)
Remedies
  • Major Failure:
    •  Reject goods; or
    • Recover compensation.
  • Not a Major Failure:
    • Remedy the failure (curing defect in title, repairing goods, replacing, or refunding);

If not remedied in a reasonable time, the consumer can recover costs or reject the goods.
  • Breach of Condition: repudiation
  • Breach of Warranty: damages

Remedy dependent upon construction of contract.
Implied Terms: Title
  • Guarantee
  • Condition
Quiet Possession
  • Guarantee
  • Right to undisturbed possession

Must notify the consumer if any (legal) encumbrances.
  • Warranty
Undisclosed Securities
  • Guarantee

Must notify the consumer of any securities prior to sale, or only with consumer’s permission,

 NO
Correspondence with Description Guarantee

  • Excludes sales by auction

Applies to both supplier and manufacturer.
  • Condition

Sales by way of auction covered.
Fitness for Purpose
  • Guarantee
  • Must rely on skill of seller and it must be reasonable to do so
  • Goods must be supplied ‘in the course of business’

Goods sold under patent/trade name are not excluded.
  • Condition
  • Must rely on skill of seller
  • Goods must be supplied ‘in the course of business’
  • Goods sold under patent/trade name are excluded (s 17(b))
Acceptable Quality
  • Guarantee

Excludes goods damaged by unreasonable use, contracts of insurance & defects disclosed to the consumer.
  • Condition
Supply by Sample/Demonstration
  • Guarantee
  • Excludes sales by auction

Sale must be ‘in the course business’.
  • Condition
  • Sales by way of auction covered.
Express Warranties
  • Guarantee

Applies to any express guarantees offered by supplier or manufacturer.

 N/A

 

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Svantesson on the Law of Obligations Copyright © 2022 by Dan Svantesson is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License, except where otherwise noted.