Sample approach to implied terms [historical only]

Note: On 1 January 2011 the state, territory and federal implied terms regimes for consumer contracts were repealed and replaced with a set of consumer guarantees which form part of the Australian Consumer Law. See the consumer guarantees page. The following provides an historical overview of the implied terms regimes.

Prior to the Australian Consumer Law the approach taken varied depending on jurisdiction - the following approach is designed for Victoria. See also diagrammatic representation.

Step 1

Is the contract a consumer contract?

Look to s 4B of the TPA or s 32D of the FTA.

Step 2

If the answer to step 1 is NO proceed to step 3

If the answer to step 1 is YES then ask whether or not the supplier is a corporation. If the answer is YES (or the extension provisions of the TPA apply - eg, interstate or overseas trade or commerce etc) then both the TPA and FTA; if the answer is NO (and the extension provisions don't apply) then only the FTA will apply.

Now proceed to step 4

Step 3

Neither the TPA or FTA implied terms regimes apply. The only remaining regime is the GA Part I.

Look to see if any or all of the terms implied by the GA have been excluded.

Note: the GA allows implied terms to be expressly excluded (section 61)

If the terms have been effectively excluded then that is the end of your analysis. If they have not been excluded then proceed to step 4

Step 4

Examine the relevant implied terms:

Note: if the FTA applies the GA will not apply (s 32FA FTA)

Title: s 69 TPA; s 32G & 32GA FTA; s 17 GA

Conformity with description: s 70 TPA; s 32H FTA; s 18 GA

Fitness for purpose: s 71(2) TPA; s 32IA FTA; s 19(a) GA

Merchantable quality: s 71(1) TPA; s 32I FTA; s 19(b) GA

Correspondence with sample: s 72 TPA; s 32HA FTA; s 20 GA

Step 5

If any have been breached assess remedies; these will be contractual remedies for breach of contract, the nature of which will depend on whether the term breached was a 'warranty' or 'condition'.

Sample approach - diagram

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The Victorian regime - overview
Note - this includes the former Part IV of the Goods Act which was repealed and replaced by the new Part 2A of the FTA.