Standard form contract
Practical Law ANZ Glossary w-003-9194 (Approx. 4 pages)
Glossary
Standard form contract
A contract where the terms and conditions are put forward by one party and the other party is not given an opportunity to negotiate or amend those terms and conditions.
For the purposes of the Australian Consumer Law (ACL):
- If a party alleges a contract is a standard form contract, it is presumed to be a standard form contract unless the other party can prove otherwise.
- To determine if a contract is a standard form contract, a court may take into account the matters it thinks relevant, but must take into account whether:
- one of the parties has all or most of the bargaining power;
- the contract was prepared by one party before any discussion of the transaction;
- the other party was effectively required to accept or reject the terms of the contract;
- the other party was given an effective opportunity to negotiate the terms; and
- the terms of the contract take into account the other party's specific characteristics.
From 9 November 2023, a court must also take into account the following:
- If the same or a substantially similar contract has been entered and the number of times this has been done.
- A contract can be a standard form contract despite a party (or a subset of parties to a standard form contract issued to a wider group):
- negotiating minor or insubstantial changes; or
- making a selection from predetermined contract term options.
For further information on unfair contract terms and standard form contracts, see Practice notes:
For further information on the reforms introduced by the Treasury Laws Amendment (More Competition, Better Prices) Act 2022 (Cth), see Practice note, Unfair contract terms and protections for small businesses: Enhancements to the unfair contract terms regime and Legislation tracker, Unfair contract terms regime reforms.
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