The law is often required to find ways of balancing competing interests; hence the frequent imagery of scales in the law. One of the overarching principles of contract law is the concept of ‘freedom of contract’, which essentially protects a person’s right to enter freely and voluntarily into any contract of his or her choosing. The law is not there to protect you from making a ‘bad bargain’; it’s simply there to enforce the bargain you freely enter into, regardless of your commercial savviness or otherwise.

However, there are certain facets of life in which the law has recognised a need to curtail this fundamental freedom due to unequal bargaining power, in order to ensure that certain categories of potentially vulnerable people are protected. Two pertinent examples of this are the areas of employment and consumer law, where protections have been afforded to the weaker contracting party, namely, employees and consumers.

Protecting the vulnerable – statutes

The law’s willingness to intervene in order to protect a more vulnerable contracting party stems from two sources. First, Parliament readily enacts statutes that codify certain minimum rights and entitlements. The Fair Work Act 2009 (Cth) and the Competition and Consumer Law Act 2010 (Cth) are examples of such statutes in Australia. Parties cannot contract out of the rights and entitlements that are provided for in these statutes – they are like Statutory Guarantees!

The Fair Work Act 2009 (Cth) prescribes a number of minimum standards in relation to employment, which are set out in the aptly named National Employment Standards. The National Employment Standards cover numerous aspects of the employment relationship, including various types of leave, maximum weekly hours, notice of termination and redundancy pay. The Competition and Consumer Law Act 2010 (Cth) includes the Australian Consumer Law – a set of provisions that regulates consumer contracts by, amongst other things, ensuring that goods and services are of an acceptable quality and are fit for the purpose for which they are acquired.

In the absence of statutes such as these, there is a real risk that the weaker contracting party would, out of necessity for employment, goods and services, enter into manifestly ‘unfair’ contracts.

Common law also attempts to mitigate unfair bargaining

The second source of protection comes from the common law and decisions by the courts to imply, as a matter of law or fact, certain terms and conditions into particular classes of contracts. By way of example in the employment context, the High Court of Australia recently considered whether employment contracts included an implied term of mutual trust and confidence. Notably, however, protections afforded by the common law are less robust than those provided under statute – unlike statutory entitlements, implied terms and conditions can be excluded or amended by express contractual terms, usually imposed by the stronger of the parties.

There are, of course, other areas of life and law where there is an imbalance of bargaining power between contracting parties. It is interesting to consider just how far the law should go in seeking to address this unequalness when the net result is to curtail the fundamental concept of freedom of contract. What do you think?

Learn legal literacy in a free to join online course

Learn more about contract law and become legally literate by joining Monash University’s Law for Non-Lawyers: Introduction to law for an accessible introduction to the common law system.

This free to join online course is designed for anyone with an interest in law. Whether out of professional or personal interest in the legal environment in which you live, work and play, this course is for you.

Join the course, Law for Non-Lawyers, today.

Learn more about Monash’s suite of online courses developed with education partner FutureLearn.

References

• Printing and Numerical Registering Co v Sampson (1875) LR 19 Eq 462 at 465
• Commonwealth Bank of Australia v Barker [2014] HCA 32

A brief mental playback and it seems like January – June screamed by like episodes in a podcast programmed to double speed. Wait … whaaaaaaaat have we achieved? What have we learned? What do we wish we didn’t learn?

So we thought it was about time that we eased our foot off the accelerator for a while, took stock and reflected on the last 6 months. A few of our BucketOrange Magazine writers boldly stepped forward to share their most memorable life lessons of 2017 so far in our inaugural half year review.

You’re welcome?

Sarah Lynch: Editor-in-Chief

So far this year I learned …

• You can take an orange out of a bucket, but you can’t take the bucket out of the orange.
• If you work hard enough at something, it eventually starts working for you.
• People are amazing! They are also jerks.
• Sleep is a precious, precious thing. If you have it, cherish it.
• Related: Never shop online late on a school night. Opening a smart jewellery parcel, bought specifically for the heart rate monitor, and tumbling to the realisation that your device does not, in fact, monitor heart rates is a self-esteem crushing situation to be avoided at all costs (especially the financial kind).
• The Killers ‘Mr Brightside’ has never left the UK charts since it was first released in 2003. Meaning that teenagers celebrating at current end-of-semester parties would never have heard the song when it originally came out. This makes Hot Fuss to them what The Joshua Tree is to me – music that was changing lives before I was old enough to listen to the radio. I feel weird inside.
• Limes are everyone’s best friend. Especially gin.
• The trick to surviving winter? Travel south till your skin turns warmer.
• Dairy is scary. Milk is actually permitted to contain a certain number of pus cells when packaged and sold. (You read that correctly the first time). But really chew on that idea for a moment. And don’t forget to savour your extra hot pus latte tomorrow.
• Switch to a plant-based diet. It’ll change your life.

Amy Thomasson, legal journalist

So far this year I learned …

• Season 3 of Twin Peaks is simultaneously the best and worst experience I’ve had this year.
• Don’t start taking a move overseas seriously only a week before you leave.
• Instagram’s story feature is superior to all other story features on social media.
• Don’t leave it two years between visits to your dental hygienist (seriously, blood EVERYWHERE).
• Acrylic nails are not suitable for anyone who wants to use their hands to full capacity.
• You’re never too old for Tumblr.
• Louis Tomlinson was aware all along that he was the dud member of One Direction.
• Prophets are not exclusive to the Bible (a fun fact I learned while playing the board game “Articulate”).

Chantal El Khoury, legal journalist

So far this year I learned …

• After trying and failing to learn code that tech is not my forte (best to stick with law).
• Everything happens all at once – assignments, exams, births, deaths and more.
• Mastering the art of making the perfect cheese platter is a skill to be coveted and a skill that I now possess.
• Writing a thesis is much harder than expected.
• It could take years before the United Kingdom officially withdraws from the European Union, not the immediate and dramatic ejection I originally imagined.
• Bitcoin is a thing now. It seems there are a finite amount – 21 million bitcoins – in existence. Once 21 million Bitcoins have been mined, no new ones can be created and they must be traded unless there is a change in policy to increase the supply. Confusing, right?

Bec Torsello, legal journalist

So far this year I learned …

• You never know a place until you visit it. Travel with an open mind and dismiss prejudices about possible travel destinations.
• Embrace the unknown, it may surprise you.
• Young people are powerful. After Brexit and Teresa May’s wake up call in the UK election, this really hit home. You have a voice, so make sure it is heard.
• Identifiably “Australian” things like Vegemite, Tim Tams, potato cakes, chicken parmas and politicians doing ridiculous things – like eating onions or having sandwiches thrown at them -should never be taken for granted.

Have anything you’d like to add to our “half year in review?” What have been your best / worst lessons or experiences of the year so far? Let us know in the comments!