Statutory aspects of unjust banking contracts: a legal analysis
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This article looks at the initiatives in the development of remedies for unconscionable conduct in contracts of bank guarantees which, as in other kinds of contracts, have not been left completely to the courts. Commonwealth (national) and State parliaments in Australia have enacted provisions directed at conduct considered to be unconscionable, and at contracts, the terms of which are considered to be unjust or unconscionable.
Such statutory provisions that bring about the regulation of consumer protection and unfair trading are to be found in the new Australian Consumer Law (ACL ). The ACL is incorporated as Sch.2 to the Competition and Consumer Act2010 (Cth) (CCA). This is a single national framework for the protection of consumers, and by extension consumer guarantors, against unfair business conduct and practices and is a national product safety regime. Many of the provisions of the ACL were formerly to be found in the Trade Practices Act 1974 (Cth) (TPA) and are interpreted by the cases associated with the TPA and accumulated since 1974 when the TPA was enacted.