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assignment 代写:销售不合理行为的案例分析

在澳大利亚法律中,不公平是对合同或合同的一部分的辩护,这种辩护是如此不公平,表明合同的一方在讨价还价和确定实质性条款时不公平。抗辩是对合同或部分合同的执行的抗辩。

“如果一份合同对一方不公平或具有压迫性,并暗示在其形成过程中存在滥用职权的行为,法院可能会认为这是不合情理的,并拒绝执行。如果同时提出不公平的谈判条件和不公平的实质性条款,合同很可能被认为是不合情理的。弱势群体缺乏有意义的选择往往被用来证明不公平的讨价还价”(康奈尔,2016)。

ACCC诉Lux分销商Pty Ltd案是一个不合理行为被注意到的案例。法院判决原告胜诉。在这个案件中,被指控从事不合理行为的是勒克斯。力士的销售代表在向老年消费者销售新吸尘器时,被认为有不合理的行为。销售人员进入五户老年消费者家中,提供免费的吸尘器保养检查,在检查客户现有吸尘器的过程中,销售人员说服他们购买一台较新的型号。如果把新款iphone带到零售店,售价将低于Lux的销售代表们的售价。在最初的情况下,法官裁定Lux没有进行不合理的行为,因为客户本应预料到销售代表会使用这种策略。消费者也有一个冷静期。然而,行政协调会对此提出上诉,联邦法院认为Lux的行为是不合情理的。具体来说,当企业试图向人们销售产品时,必须使用一些规范和标准,这些规范和标准必须是公开的、诚实的,而不是骗人的(Ng, & Deakin, 2013)。

从这里可以看出,一方对另一方有不公平的优势。销售人员知道他们的议程是销售新的吸尘器,而且他们有关于吸尘器的有用信息,可以假装检查它,从而欺骗老年消费者。该党还知道,与零售展厅中吸尘器的实际价格相比,销售的新吸尘器价格不公平。销售人员所拥有的信息优势,一定是以一种开放的方式使用的,而不是以一种不公平的方式使用的信息优势。这是不合理的行为。此外,另一方(老年消费者)被认为会感到惊讶,因为他们后来意识到,他们可以在零售陈列室以更低的价格买到同样的吸尘器。这一不公平的意外事件再次成为一种信息优势,因为可以看出,其中一方以错误的方式利用信息来胁迫另一方。勒克斯的代表一进到房子里,他们就已经利用了不公平的优势,以信息的形式,他们在真空吸尘器上。当他们知道他们可以以某种方式说服客户时,他们的优势地位就会变得更强(Ng, & Deakin, 2013)。因此勒克斯的行为是不合理的。

assignment 代写:销售不合理行为的案例分析

Unconscionability in Australian law is the defence that is used against a contract or part of a contract which is so unfair indicating that one of the parties of the contract has been unfair in bargaining and in setting the substantive terms. A defence is against the enforcement of a contract or portion of a contract.
“If a contract is unfair or oppressive to one party in a way that suggests abuses during its formation, a court may find it unconscionable and refuse to enforce it. A contract is most likely to be found unconscionable if both unfair bargaining and unfair substantive terms are shown. An absence of meaningful choice by the disadvantaged party is often used to prove unfair bargaining” (Cornell, 2016).
ACCC vs. Lux Distributors Pty Ltd is a case that unconscionable conduct was noted. The Court decided in favour of the Plaintiff. In this case, the party that was alleged to have engaged in unconscionable conduct was Lux. The sales representatives of Lux were seen to have engaged in unconscionable conduct, when they were selling new vacuum cleaners to elderly consumers. The salesmen entered the house of five elderly consumers by offering a free vacuum cleaner maintenance check and in the process of checking the existing vacuum cleaners of the customers, the sales people then persuaded them to buy a newer model. The newer model when brought at a retail store would have costed less than what the Lux sales representatives were selling them for. In the initial context, the Judge ruled that Lux had not engaged in unconscionable conduct as the customers should have expected such tactics would be used by the sales representatives. Also consumers had a cooling off period. However, ACC appealed this and the Federal court found the conduct of Lux to be unconscionable. Specifically, there were norms and standards that were to be used when businesses attempt to sell things to people, they have to be open and honest and not deceptive (Ng, & Deakin, 2013).
It can be seen here that one of the party had unfair advantage over the other party. The sales person knew their agenda was to sell the new vacuum cleaner and furthermore they had information on the vacuum cleaner that was useful for them to pretend to check it so as to deceive the elderly consumer. The party also knew that the new vacuum cleaner that were selling was unfairly priced compared to the actual price of vacuum cleaners in the retail showrooms. The information advantage that the sales people had, must have been used in an open manner instead the information advantage that was used in an unfair manner. This shows unconscionable conduct. Furthermore, the other party (the elderly consumers) were seen to be in for a surprise as they later realized that they could have got the same vacuum cleaner for a much lesser price in the retail showroom. The unfair surprise is once again, an information advantage as it is seen that one of the party has made use of information in a wrong way in order to coerce another. The Lux representative as soon as they were given entry to the house, they have already made use of an unfair advantage in the form of information, and they had on vacuum cleaners. And their position of strength becomes stronger as they know they can convince the customer somehow (Ng, & Deakin, 2013). Lux’s act was hence unconscionable.