Victorian Consolidated Legislation

Fair Trading Act 1999 - SECT 32Q

Liability of supplier and person conducting antecedent negotiations

32Q. Liability of supplier and person conducting antecedent negotiations



(1) In a contract of supply of goods or services, a representation made to the
purchaser in the course of any antecedent negotiations by a dealer or by a
person acting on behalf of the supplier (otherwise than as an agent of the
supplier acting with the authority of the supplier) confers on the purchaser-

   (a)  as against the supplier, the same right to rescind the contract and
        the same right of action in damages as the purchaser would have had if
        the representation had been made by an agent of the supplier acting
        with the authority of the supplier; and

   (b)  as against the person by whom the representation was made, the same
        right of action in damages as the purchaser would have had if the
        purchaser had purchased the goods or services from that person; and

   (c)  if the antecedent negotiations were conducted on behalf of another
        person, as against that other person the same right of action in
        damages as the purchaser would have had if the purchaser had purchased
        the goods or services from that other person.

(2) In a contract of supply of goods or services, a warranty given to the
purchaser in the course of any antecedent negotiations by a dealer or by a
person acting on behalf of the supplier (otherwise than as an agent of the
supplier acting with the authority of the supplier) confers on the purchaser-

   (a)  as against the person by whom the warranty was given, the same right
        of action in damages as the purchaser would have had if-

   (i)  the warranty had been given in consideration of the purchaser
        purchasing the goods or services from that person; and

   (ii) the purchaser had purchased the goods or services from that person;
        and

   (b)  if the antecedent negotiations were conducted on behalf of a dealer,
        as against the dealer the same right of action in damages as the
        purchaser would have had if-

   (i)  the warranty had been given in consideration of the purchaser
        purchasing the goods or services from the dealer; and

   (ii) the purchaser had purchased the goods or services from the dealer.

(3) For the purposes of subsections (1) and (2) it is immaterial whether or
not the goods or services supplied to the purchaser were purchased by the
supplier from a dealer by whom or on whose behalf any antecedent negotiations
were conducted.

(4) Nothing in this section prevents a statement being both a representation
and a warranty.

(5) Nothing in this section confers on a purchaser an entitlement to an amount
of damages arising from a representation or a warranty exceeding the amount of
the loss suffered by the purchaser.