Contracts form the backbone of business operations, serving as the blueprint for business relationships. The ideal contract is one that fosters a fair and balanced partnership, ensuring mutual benefit and satisfaction for all parties involved. However, the journey of drafting such a contract is fraught with challenges. This blog explores why it’s crucial to find the right balance when it comes to contractual terms so as to ensure no party is unfairly disadvantaged.

The Pitfall of One-Sided Contracts

While it may seem advantageous to have contract terms heavily favour one party, this advantage can be an illusion, because the imbalance can sow seeds of tension and mistrust, undermining the foundation of the business relationship. The perception of unfairness may discourage parties from entering into or continuing the agreement, leaving missed opportunities and potentially tarnishing reputations.

Enhancing Business Relationships Through Fair Contracts

Fair contracts are more than just legal documents; they are the bedrock of trust and cooperation in business. When both parties perceive the contract as fair, it promotes trust and respect, fostering a positive business relationship that can open doors to more opportunities in the future. Conversely, a contract appearing heavily skewed in one party’s favour risks making your suppliers resentful or disgruntled.

Legal Risks of Unfair Contracts

Legally, contracts that heavily favour one side can raise eyebrows and even lead to legal challenges. It’s not just about fairness; it’s also about staying on the right side of the law to avoid costly disputes. Ensuring fairness in contracts is essential for legal compliance and risk mitigation. Sometimes a clause in a contract that appears to heavily favour one party over the other will not be enforceable in court. A lawyer that drafted it may place it in the document to make their client feel safe, or as though they are getting a good deal, even though it risks being read down by a judged (i.e. the court will deem that provision to be void or unenforceable).

Prior to 2023, the only recourse a disadvantaged party previously had in relation to unfair contract terms was to seek orders from the court to render the unfair contract terms void and unenforceable. However, following the introduction of the Treasury Laws Amendment (More Competition, Better Prices) Act 2022 (Amendment Act), courts now have broader powers to intervene in cases of unfair contract terms in standard form contracts, imposing hefty penalties for breaches under Australian Consumer Law (“ACL”). Penalties for breach could reach up to $50 million for corporations and $2.5 million for individuals for each unfair term.

Impact of Contract Terms on Negotiation and Agreement Processes

The terms of a contract heavily influence the negotiation and agreement processes. If a contract appears one-sided, it can lead to prolonged and complicated negotiations as the disadvantaged party will likely seek to amend the terms. If you have a standard contract template that is too heavily in your favour, you can multiply these fraught negotiations by the number of counter-parties that you want to enter it with you. Conversely, a balanced contract can facilitate smoother negotiations and a faster agreement, fostering efficiency and goodwill. A balanced contract does not necessarily leave you unprotected.

Considering the Other Party’s Perspective

Drafting contracts isn’t just about protecting your interests. It’s critically important to consider the perspective of the other party. By understanding their needs and concerns, you can create a contract that is fair and beneficial to both parties, thereby promoting a positive and long-lasting business relationship.

Case Studies: Learning from Past Mistakes

A one-sided contract is similar to a see saw stuck on one end. Whilst it might seem like a win at first, such agreements often backfire. There are numerous case studies highlighting the negative impacts of overly favourable contracts. These serve as a stark reminder of the importance of balance and fairness in contract drafting, and the potential fallout that can occur when this balance is not achieved.

In 2020, the ACCC brought proceedings against Fuji Xerox Australia and Fuji Xerox Finance (Fuji) for the use of unfair contract terms in their standard form contracts and in 2022, the Federal Court held 38 contract terms of their standard form contracts to be unfair and declared those terms void and unenforceable[1]. The unfair contract terms included terms providing for automatic renewal, excessive exit fees and unilateral price increases.

In 2019, in an action by the ACCC against hair loss business Ashley & Martin, the Federal Court found terms in three standard form contracts with consumers to be void because they were unfair. Some of the terms meant that customers who stopped their hair loss treatment after developing adverse side effects to the medication were penalised for doing so.[2]

The ACCC has provided advice to businesses to help them avoid including unfair contract terms in their standard form contracts.

Role of Lawyers in Ensuring Contract Fairness

The increasing unfair contracts provisions are now being steadily enforced by the ACCC and in certain cases, even commencing prosecutions. Businesses relying on standard contracts in particular must be mindful when drafting their contracts in order to account for the terms of the ACL.

This is where seeking legal expertise becomes indispensable. Lawyers play a crucial role in ensuring contract fairness. With their legal expertise, they help draft contracts that protect their client’s interests while ensuring that the terms are fair and legally sound.

With recent legislative changes, courts now have broader powers to intervene in cases of unfair contract terms, imposing hefty penalties for breaches under ACL. At mode.law, we understand the importance of fairness in contract drafting. Our templates are designed to uphold the principles of equity, ensuring a level playing field for all parties involved. While our templates provide a solid foundation, we understand that each business is unique. For those seeking tailored solutions, the team of legal experts at Attune Legal stand ready to assist. They can help you navigate the complexities of contract drafting, simply reach out via the “Get a Quote” feature or you can book a direct consultation with a lawyer, via the “Talk to a Lawyer” option on mode.law.

[1] https://www.accc.gov.au/media-release/38-contract-terms-in-11-fuji-small-business-contracts-declared-unfair-and-void

[2] https://www.accc.gov.au/media-release/court-finds-ashley-martin-contract-terms-unfair