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Abstract

Pursuant to Part IVA and section 52 of the Trade Practices Act 1974 (Cth) corporations are prohibited from engaging in 'unconscionable' and 'misleading or deceptive' conduct. The statutory provisions are not limited to consumer transactions but extend to cover the pre-contractual and contractual relationships entered into between commercial parties themselves. In recent times, concerns have been raised that the provisions are causing widespread uncertainty among business persons, resulting in much complex and costly litigation.

This paper explores the rationale for including private commercial conduct within the scope of Part IVA and section 52, finding that the unifying theme of 'commercial morality' underpins judicial and legislative activity in this regard.

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