Contract and Commercial Law Bill

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Hon Christopher Finlayson

Contract and Commercial Law Bill

Government Bill

134—2

	Commentary
	Key
1	Title
2	Commencement
	Part 1 Preliminary provisions
3	Purpose
4	Revision Act
5	Overview of this Act
6	Transitional, savings, and related provisions
7	Status of examples
8	Act binds the Crown
	Part 2 Contracts legislation
9	Interpretation
	Subpart 1—Contractual privity
10	Purpose
11	Interpretation
12	Deed or contract for benefit of person who is not party to deed or contract
13	Section 12 does not apply if no intention to create obligation enforceable by beneficiary
14	Variation or discharge of promise may require beneficiary’s consent
15	Variation or discharge by agreement or in accordance with express provision
16	Court may authorise variation or discharge
17	Enforcement by beneficiary
18	Availability of defences
19	This subpart does not apply to promises, contracts, or deeds governed by foreign law
20	Savings
	Subpart 2—Contractual mistakes
21	Purpose of this subpart
22	This subpart to be code
23	Interpretation
24	Relief may be granted if mistake by one party is known to another party or is common or mutual
25	Mistake does not include mistake in interpretation of contract
26	Decision to enter into contract not influenced by mistake if party aware of it
27	Mistake caused by party seeking relief
28	Nature of relief
29	Court may grant relief to person claiming through or under party
30	Persons who may apply
31	Rights of third persons not affected
32	This subpart does not apply to contracts governed by foreign law
	Subpart 3—Contractual remedies
33	Meaning of cancel
34	Remedy provided in contract
	Damages for misrepresentation
35	Damages for misrepresentation
	Cancellation
36	Party may cancel contract if another party repudiates it
37	Party may cancel contract if induced to enter into it by misrepresentation or if term is or will be breached
38	No cancellation if contract is affirmed
39	Parties with substantially same interest
40	Sections 36 to 39 have effect in place of rules of common law and of equity
41	When cancellation may take effect
42	Effect of cancellation
	Power of court to grant relief
43	Power of court to grant relief
44	Order for relief may be subject to terms and conditions
45	Matters court must have regard to
46	Protection of purchaser of property in good faith and for valuable consideration
47	Party who has altered position
48	Persons who may apply
49	Recovery of damages
	Provisions purporting to prevent court inquiry
50	Statement, promise, or undertaking during negotiations
51	Authority for making or giving statement, promise, or undertaking
52	Contracts for sale of goods
53	Proceeding before Disputes Tribunal
	Assignees
54	Remedies enforceable by or against assignee
55	Damages may not exceed value of performance of assigned contract
56	Assignee indemnified by assignor
57	Other provisions relating to assignees
	Miscellaneous provisions
58	This subpart does not apply to contracts governed by foreign law
59	Savings
	Subpart 4—Frustrated contracts
60	Application
	Money paid or payable
61	Money paid may be recovered and money payable ceases to be payable
62	Court may allow party who has incurred expenses to retain or recover money
	Other valuable benefits
63	Sum may be recovered if party has obtained valuable benefit
64	Benefit may be treated as being obtained
	Expenses
65	Estimates of expenses
	Insurance
66	Money payable under contract of insurance
	Other provisions relating to application
67	Court must give effect to provision in contract
68	Court must treat performed part of contract that can be properly severed as separate contract
69	This subpart does not apply in certain circumstances
	Subpart 5—Illegal contracts
70	Interpretation
71	Illegal contract defined
72	Breach of enactment
	Illegal contracts have no effect
73	Illegal contracts have no effect
74	Protection of persons who acquire property in good faith and without notice
	Court may grant relief
75	Who may be granted relief
76	Court may grant relief
77	Order may be subject to terms and conditions
78	Matters court must have regard to
79	Court must not grant relief if not in public interest
80	Person acting with knowledge of facts or law giving rise to illegality
81	Persons who may apply
82	Restriction on granting relief otherwise than in accordance with this subpart
	Restraints of trade
83	Restraints of trade
84	Law relating to restraint of trade and to ouster of jurisdiction not affected
	Subpart 6—Minors’ contracts
85	Interpretation
	Contractual capacity of minors
86	Contracts unenforceable against minors but otherwise have effect
87	Court may inquire into fairness and reasonableness of contract
88	Court orders where contract was fair and reasonable
89	Court orders where contract was not fair and reasonable
90	Matters court must have regard to
91	Further provisions relating to application of sections 86 to 90
	Special rules for contracts of service and life insurance contracts
92	Contracts of service and life insurance contracts have effect as if minor were of full age
93	Court may make orders about unconscionable, harsh, or oppressive contract of service or life insurance contract
94	Sections 92 and 93 do not apply in certain circumstances
	Compensation or restitution
95	Compensation or restitution
	Other provisions relating to applications and orders
96	Applications under sections 87 to 89 or section 93
97	Terms and conditions of orders
	Entering into contract with District Court’s approval
98	Minor may enter into contract with approval of District Court
99	Persons who may apply
100	Referral of application
101	Contracts relating to property held on trust
	Guarantees and indemnities
102	Guarantees and indemnities
	Compromise or settlement of claims by minors
103	Application
104	Claim that is not subject of proceeding
105	Claim that has become subject of proceeding
106	Who may apply for approval
107	Court may refuse or grant approval
	Court directed trust for minor
108	Money or damages to be held on trust
109	Payment on minor reaching 18 years or marrying or entering into civil union or de facto relationship
	Other matters relating to sections 103 to 109
110	Sections 103 to 109 do not limit or affect certain other provisions
111	Variation of certain orders
112	Order may be made on court’s own motion or on application
	Jurisdiction
113	Jurisdiction of District Courts
114	Jurisdiction of Disputes Tribunals
	Subpart to be code
115	This subpart to be code
	Agreements relating to trusts
116	Effect of this subpart on trust
117	Agreement to extinguish or vary trust may be approved
	Subpart 7—Stipulations not of essence of contracts
117A	Stipulations not of essence of contracts
	Part 3 Sale of goods
118	Interpretation
	Subpart 1—Formation of contract
	Contract of sale
119	Contract of sale of goods
120	Contracts of sale may be between one part-owner and another
121	Contracts of sale may be absolute or conditional
122	Sale and agreement to sell
123	Capacity to buy and sell
	Contractual formalities
124	How contract of sale is made
	Subject matter of contract
125	Existing or future goods
126	Contract void if goods have perished at time when contract is made
127	Contract void if goods perish before sale but after agreement to sell
	Price
128	Fixing contract price
129	Agreement to sell at valuation
	Conditions and warranties
130	Stipulations about time
131	Conditions and warranties
132	Breach of condition to be fulfilled by seller
133	Impossibility or other excuse
134	Implied condition and warranties as to title and quiet possession
135	Sale by description
136	Implied conditions or warranties as to quality or fitness
137	Implied condition that goods are reasonably fit for purpose
138	Implied condition that goods are of merchantable quality
139	Implied warranty or condition by usage of trade
140	Express warranty or condition
	Sale by sample
141	Sale by sample
	Subpart 2—Effects of contract
	Transfer of property between seller and buyer
142	Goods must be ascertained
143	Property passes when intended to pass
144	Ascertaining parties’ intention
145	Rules for ascertaining parties’ intention
146	Reservation of right of disposal
147	Risk passes with property unless otherwise agreed
	Transfer of title
148	Sale by person who is not owner
149	Market overt
150	Sale under voidable title
151	Revesting of property in stolen goods on conviction of offender
152	Seller in possession after sale
153	Buyer in possession after sale
154	Effect of writs of execution
	Subpart 3—Performance of contract
155	Duties of seller and buyer
156	Payment and delivery are concurrent conditions
	Rules about delivery
157	Determining whether buyer to take possession of goods or seller to send goods
158	Place of delivery
159	Goods must be sent within reasonable time if no time is fixed
160	Goods in possession of third person
161	Demand or tender of delivery must be at reasonable hour
162	Seller must bear expenses of putting goods into deliverable state
163	Delivery of wrong quantity or of mixed goods
164	Buyer not bound to accept delivery by instalments
165	Instalment deliveries: breach of contract
166	Delivery to carrier
167	Risk where goods are delivered at place other than place where goods are sold
168	Buyer’s right to examine goods
169	Acceptance of goods
170	Buyer not bound to return rejected goods
171	Liability of buyer for neglecting or refusing to take delivery of goods
	Subpart 4—Rights of unpaid seller against goods
172	Unpaid seller defined
173	Unpaid seller’s rights
	Unpaid seller’s lien
174	Unpaid seller’s lien
175	Part delivery
176	When unpaid seller loses lien
	Stopping goods in transit
177	Right to stop goods in transit
178	Duration of transit
179	Goods delivered to ship chartered by buyer
180	Part delivery
181	How right is exercised
182	Notice of seller’s claim
183	Redelivery of goods
	Resale by buyer or seller
184	Effect of subsale or pledge by buyer
185	Transfer of document of title to person in good faith and for valuable consideration
186	Sale not generally rescinded by lien or stopping goods in transit
187	Buyer’s title on resale
188	Resale in case of perishable goods or notice of intention to resell
189	Express power of sale
	Subpart 5—Remedies for breach of contract
	Remedies of seller
190	Claim for price
191	Damages for non-acceptance
	Remedies of buyer
192	Damages for non-delivery
193	Specific performance
194	Remedy for breach of warranty
195	Interest and special damages
	Subpart 6—Supplementary matters
196	Exclusion of implied terms and conditions
197	Exclusion where Consumer Guarantees Act 1993 applies
198	Reasonable price and reasonable time are questions of fact
199	Rights and duties enforceable by proceeding
200	Savings
	Subpart 7—United Nations Convention on Contracts for the International Sale of Goods
201	Purpose
202	Interpretation
203	Convention to have force of law
204	Convention to be code
205	Certificates about Contracting States
	Part 4 Electronic transactions
	Subpart 1—Preliminary provisions
206	Purpose
207	Overview
208	Interpretation
209	Further provision relating to interpretation
	Subpart 2—Improving certainty in relation to electronic information and electronic communications
	Validity
210	Validity of information
	Default rules about dispatch and receipt of electronic communications
211	When default rules in sections 212 to 215 apply
212	Time of dispatch
213	Time of receipt
214	Place of dispatch
215	Place of receipt
216	Time of communication of acceptance of offer
	Subpart 3—Application of legal requirements to electronic transactions
	Preliminary provisions
217	When subpart applies
218	When legal requirement can be met by electronic means
219	Consent to use of electronic technology
220	When integrity of information maintained
	Legal requirement: writing
221	Legal requirement that information be in writing
222	Legal requirement to record information in writing
223	Legal requirement to give information in writing
224	Legal requirements relating to layout and format of certain information and writing materials
	Legal requirement: signatures
225	Legal requirement for signature
226	Legal requirement that signature or seal be witnessed
227	Presumption about reliability of electronic signatures
	Legal requirement: retention
228	Legal requirement to retain document or information that is in paper or other non-electronic form
229	Legal requirement to retain information that is in electronic form
230	Extra conditions for electronic communications
	Legal requirement: provision and production of, and access to, information
231	Legal requirement to provide or produce information that is in paper or other non-electronic form
232	Legal requirement to provide or produce information that is in electronic form
233	Legal requirement to provide access to information that is in paper or other non-electronic form
234	Legal requirement to provide access to information that is in electronic form
	Legal requirement: originals
235	Originals
	Miscellaneous
236	Legal requirement relating to content of information
237	Copyright
238	Regulations and Order in Council to amend Schedule 5
239	Authority to prescribe electronic forms and requirements for using electronic forms
	Part 5 Other commercial matters
	Subpart 1—Carriage of goods
	Overview
240	Overview
	Application and effect of subpart
241	This subpart applies to carriage of goods by carrier under contract
242	This subpart does not apply to international carriage, to postal services, or in certain other cases
243	Other remedies affected
244	Contracting out permitted for some matters
	Interpretation
245	Interpretation
246	Meaning of unit of goods
	Kinds of contract of carriage and effect on liability of parties
247	Liability depends on kind of contract of carriage
248	Particular kind of contract of carriage is matter for agreement subject to meeting requirements for that kind
249	Requirements for contract for carriage at owner’s risk
250	Requirements for contract for carriage at declared value risk
251	Requirements for contract for carriage on declared terms
252	Difference between amounts charged must be fair and reasonable for contract at owner’s risk or declared value risk
253	Contract between contracting carrier and actual carrier or between actual carriers
	Liability of contracting carriers
254	Application of sections 255 to 257
255	Liability of contracting carrier
256	When responsibility for goods begins
257	When responsibility for goods ends
	Limits on carrier liability for contracts of carriage at limited carrier’s risk or declared value risk
258	Carrier’s liability limited to $2,000 for each unit of goods or to declared value
259	Carrier not liable in certain circumstances
	Liability of actual carrier to contracting carrier
260	Application of provisions on liability of actual carrier to contracting carrier
261	Liability where 1 actual carrier is involved
262	Liability where more than 1 actual carrier is involved
263	When actual carriers are jointly responsible or separately responsible for goods
264	Provisions relating to joint liability of actual carriers
	Other provisions relating to liability of carriers
265	Rights of contracting party where contracting carrier insolvent or cannot be found
266	Liquidator or assignee in bankruptcy holds money on trust
	Liability of carriers for baggage
267	Special rules relating to liability of carrier in respect of baggage
268	Other rules relating to hand baggage
	Liability under contracts of successive carriage
269	Contracts of successive carriage by air
270	When successive carriers are jointly responsible or separately responsible for goods
	Liability of employees
271	Liability of carrier’s employee
	Warranty by contracting parties
272	Contracting party to warrant condition of goods and compliance with enactments
	Proceedings against carriers
273	Notice of claim against contracting carrier must be given within 30 days
274	Notice of claim against actual carrier must be given within 10 days
275	No notice required if carrier is or ought to be aware of damage or loss or in case of fraud
276	Non-notified proceeding may be brought with carrier’s consent or leave of court
277	Limitation on proceedings against carriers for loss of goods
278	Limitation on proceedings against carriers for damage to or partial loss of goods
279	Proceeding may be brought after limitation period with carrier’s consent or leave of court
280	Proceeding by consignee if not contracting party
	Rights of carriers
281	Contracting out permitted on rights of carriers
282	Right to sue for freight
283	Proceeding for recovery of freight
284	Carrier’s lien
285	Notice of carrier’s claim
286	Carrier may store goods
287	Sale of goods by public auction
288	Storage and disposal of unclaimed or rejected goods
289	Disposal of perishable goods
290	Disposal of dangerous goods
291	Liability of carrier extinguished in respect of sale or disposal of goods
	Miscellaneous provisions
292	Common carrier of goods abolished
293	Proceedings against New Zealand agents of overseas carriers
294	Certain other Acts not affected
	Subpart 2—Mercantile agents
295	Interpretation
	Sales, pledges, and other dispositions by mercantile agents
296	Sale, pledge, or other disposition by agent in possession with owner’s consent is valid
297	Buyer, etc, has notice of lack of authority if goods subject to perfected security interest
298	Effect of withdrawal or expiry of owner’s consent
299	Provisions relating to consent
300	Effect of pledges of documents of title
301	Pledge of goods as security for existing debt or liability
302	Rights acquired by exchange of goods or documents
303	Agreements through employees or other authorised persons
304	Consignee’s lien
305	Effect of transfer of document of title to goods on vendor’s lien and right of stopping goods in transit
	Miscellaneous provisions
306	Mode of transferring documents
307	Saving of rights of true owner
308	Common law powers of mercantile agent
	Subpart 3—Bills of lading, sea waybills, and ship’s delivery orders
	Application
309	Application of this subpart
310	This subpart ~~does not limit~~ applies without prejudice to application of Hague Rules
	Interpretation
311	Interpretation
312	Goods that cease to exist or cannot be identified
	Rights under shipping documents
313	Holder of bill of lading or person to whom delivery is to be made has rights under contract of carriage
314	Rights where possession of bill of lading no longer gives right to possession of goods
315	Rights in relation to ship’s delivery order
316	Rights may be exercised for benefit of person who suffers loss or damage
317	Transfer extinguishes certain rights
	Liabilities under shipping documents
318	Person in whom rights are vested becomes subject to liabilities
319	Liabilities exclude liabilities in respect of goods to which ship’s delivery order does not relate
320	Right of stopping goods in transit, or claims for freight, not affected
321	Bill of lading in hands of shipper, consignee, or endorsee is conclusive evidence as against master or other signer of bill
322	Regulations relating to network or other information technology
	Special provisions about received for shipment bills of lading
323	Special provisions about received for shipment bills of lading
	Subpart 4—Power for shipowner to enter and land goods, and lien for freight
324	Interpretation
325	Shipowner may enter and land goods in default of entry and landing by owner of goods
326	Place for landing goods
327	Owner who is ready and offers to land or take delivery of goods
328	Landing of goods at wharf where ship is discharged for purpose of sorting goods
329	Requirement for notice in certain circumstances
330	Continuation of lien for freight if shipowner gives notice
331	Discharge of lien on production of receipt and delivery of copy of receipt or release
332	Discharge of lien on deposit with warehouse owner
333	Right of wharf owner or warehouse owner, if no notice is given, to pay deposit to shipowner
334	Course to be taken if notice to retain is given
335	Wharf owner or warehouse owner may sell goods by public auction after 90 days
336	Notices of sale to be given
337	How money arising from sale is to be applied
338	Wharf owner’s or warehouse owner’s rent and expenses
339	Wharf owner’s or warehouse owner’s protection
	Subpart 5—Lien for work done
339A	Power of sale under lien for work done
339B	Notice of sale to be given
339C	How notice of sale is given to owner of goods
339D	How money arising from sale is to be applied
	Part 6 Repeal of revised Acts, consequential amendments, and miscellaneous provisions
340	Repeal of revised Acts
341	Revocation
342	Amendments to other enactments
	Schedule 1 Transitional, savings, and related provisions
	Schedule 2 Minor amendments to clarify Parliament’s intent or reconcile inconsistencies
	Schedule 3 Comparative table
	Schedule 4 United Nations Convention on Contracts for the International Sale of Goods
	Schedule 5 Enactments and provisions excluded from subpart 3 of Part 4
	Schedule 6 Consequential amendments
	Legislative history

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