Many advertisers treat "conditions apply" as a
magical incantation. I have known some to include these words
in an advertisement, believing that they are then covered for
all manner of exclusions. I have also known advertisers who
include these words because they feel they must, simply because
the supply of product is subject to standard terms and
conditions of supply. In reality, the words "conditions
apply" are of limited application and even less effect.
This was illustrated recently by the Western Australian Court
of Appeal's decision in Bayswater Car Rental Pty
Ltd v Department of Employment and Consumer
Speaking generally, the words "conditions apply"
in an advertisement can indicate only that the offer featured
in the ad is subject to conditions that one would reasonably
anticipate in the circumstances. For instance, an advertisement
promoting a sale by a chain of bookshops could use the words
"conditions apply" to indicate that customers are
limited to a maximum of a certain number of books, that the
offer does not apply to retailers and that the sale will end on
a particular date. Having said that, greater notice than what
"conditions apply" allows may be needed, even for
these conditions, if particularly out of the ordinary, for
instance, if the sale was to last only one weekend and the
advertisement were running in a monthly publication.
The general point here is that advertisers must stand behind
not only the express statements in their ads, but also any
other meaning customers reasonably take from that ad. The ad
will be misleading and deceptive if any of those
representations – express or implied - is wrong. The
question is whether including the words "conditions
apply" puts customers on notice sufficiently of exclusions
and limitations for that to register, or will they take from
the ad that the offer is unrestricted notwithstanding the
reference to "conditions apply"? The decision in
Bayswater Car Rentals suggests that the answer to that question
necessarily is no, that the disclaimer "conditions
apply" can never perform that function and can only ever
refer to the types of conditions mentioned in the bookshop
Bayswater Car Rentals advertised a "7-Day Special"
on nominated vehicles in The West Australian. The ad
ran between 17 and 24 March 2005. Easter that year fell on the
weekend of the 25th to 28th of March. The
ad stated "conditions apply", but did not elaborate.
Angry customers were refused the 7-Day Special rate when they
tried to book cars over the Easter weekend. The Court of Appeal
unanimously held that this was misleading and deceptive.
Overall, the Court took the view that the advertisement made
the general representation that the 7-Day Special rate would be
available to the public at all nominated branches for a
reasonable time after, and commencing from, the date of
publication. That included Easter because the disclaimer could
not, and did not, suggest to customers that there were any
exclusions. As that was not the case, the ad was misleading.
The Court considered that the words "conditions
apply" could only ever indicate to potential customers
that there were conditions that qualified a customer to take
advantage of the offer.
When the matter first went to Court, the Magistrate accepted
that most people understood offers of this type do not
generally apply during peak periods. The Court of Appeal did
not accept that consumers necessarily made that assumption.
But, even if they did, the ad remained misleading at law.
Readers may think that this is particularly harsh given that
customers would have the terms of the offer clarified as soon
as they telephoned to book a vehicle. The Court held that the
advertisement was misleading despite that.
The bottom line is that advertisers should use
"CONDITIONS APPLY" with caution. If the advertised
offer is subject to important exclusions, it may be necessary
to make those fairly prominent.
1  WASCA 43, handed down on 4 March
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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