The Advertisement - Term of contract, Misrepresentation or Mere Opinion?
The initial issue is to classify the University of Kew’s advertisement that induced Brad to enter into a contract. If it constitutes a term of the contract, then contractual remedies would be awarded if there was a breach[1]. If it is a misrepresentation, then Brad would be provided with remedies for common law misrepresentation. However, if it is a mere statement of opinion or a prediction about the future, then it would have no legal consequence[2].
In JJJ Savage & Sons Pty Ltd v Blakney[3], the purchaser was denied damages, even when he was induced to enter into the contract by a non-promissory statement. Therefore for a statement to be classified as a term of contract, the parties must have intended it to be promissory in nature. Although the courts take into account a number of other factors to define the terms of contract[4], the advertisement is unlikely to be considered as a promise. Furthermore, had the advertisement not been included in the subsequent written contract, the parol evidence rule makes it even harder for Brad to pursue his right under contract.
A misrepresentation is a false statement of fact, which allows Brad the right to rescind the contract[5]. Damages are also available if the university did not believe the truthfulness of the presentation[6]. However, the university’s liability regarding misrepresentation was excluded by the exclusion clause, which was signed by Brad prior to the contract[7]. As a result, Brad would not be able to seek remedies even if the advertisement was a misrepresentation.
The Advertisement - Misleading Conduct
Section 18 of the Competition and Consumer Act 2010 (Cth)[8] (‘The Act’) states that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is
