Unfulfilled Promissory Contractual Terms And Section 52 Of The Australian Trade Practices Act
AbstractSince its inception, the prohibition against misleading or deceptive conduct contained in Section 52 of the Trade Practices Act and its Fair Trading counterparts has been continually invoked in areas in respect of which the prohibition would not immediately appear to be relevant. One area in which the prohibition has not supplanted the common law is where there has been a breach or non-fulfillment of a promissory contractual term. The current approach of the courts has been that where the impugned conduct consists of promissory statements, such statements can be misleading only if there is a lack of intention on the part of the promisor or if there is a lack of a reasonable foundation for the promise. This article argues that a promise and its subsequent breach can be considered to be ‘conduct’ within the meaning of the legislation, and on such a basis, the promisee arguably be said to have been mislead in the belief that the promisor will fulfill the contractual obligations. |