In such a case, it also needs to be seen if the particular term present in the consumer contract may cause imbalance in the rights and obligations that are enjoyed by the parties. Therefore a factual assessment has to be made of the evidence available in this regard. Similarly, it also needs to be established by the claimant that a particular term has imbalance their rights and obligations. As a part of the next stage of the test used to decide the unfairness of a term, the court has to consider it the term can be said to be reasonably necessary for safeguarding the interests of the party that has included such a term (Treasury, 2009). Therefore, in such a case, the court has to see if the term will cause a detriment to the other party if such term is applied by the court. In such a case, the detriment suffered by the other party can be a financial nature or otherwise.
Another important factor in this regard is the transparency of the term. For this purpose, the contract needs to be considered as a whole. If it is found that any particular term lacks transparency, it may imbalance the rights and obligations that are imposed on the parties under the contract. On the other hand, a particular term can be considered as transparent if it has been expressed in the contract using plain language. It is also required that the term should be legible and presented clearly (Slawson, 1971). In the present case, the terms of the contract were explained to Hamid using technical language despite the fact that Hamid had little knowledge of English.
For creating the contract between Hamid and Speed Connect Pty Ltd., Kathy had used complex technical language although she knew that Hamid understood very little English. Kathy also failed to use the telephone translation service that was available to her but she decided against the use of this service because in such a case it would have taken more time to explain the contract. Kathy was in a hurry to sell the contract because she had to conclude two other contracts and she was paid by the company on a commission basis.
On the basis of above-mentioned discussion of the relevant rules of law and their application, it can be said that despite the fact that a valid contract has been created between Hamid and Speed Connect Pty Ltd., all the terms of the contract cannot be said to be reasonable as these terms present in the standard form contract have not been completely explained to Hamid. On this ground, it can be said that the terms were not sufficiently transparent. Therefore, the terms of the contract can be held as void by the court and therefore the contract can be terminated by Hamid.
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W David Slawson, 1971, ‘Standard Form Contracts and Democratic Control of Lawmaking Power’ 84 Harvard Law Review 529