What must be considered to determine if it is fair and reasonable to contract out of the CGA?

To determine if it is fair and reasonable to contract out of the Consumer Guarantees Act (CGA), it is essential to consider the subject matter of the agreement and the bargaining power of the parties involved. The CGA provides a set of guarantees that protect consumers when purchasing goods and services, and it is designed to ensure that consumers are treated fairly.

When evaluating whether to exclude those protections, one must assess the nature of the goods or services being provided and the relative bargaining power of each party. For instance, if one party holds significantly more bargaining power—perhaps due to being a large corporation compared to an individual consumer—contracting out of the CGA may not be considered fair or reasonable. The objective is to identify imbalances in power or knowledge that could lead to unfair disadvantage for the weaker party.

Additionally, the subject matter of the agreement is critical because certain products or services may inherently involve higher risks to consumers which necessitate the protections provided under the CGA. If these factors suggest that the party seeking to contract out has undue advantage, it likely undermines the fairness of excluding CGA protections.

In contrast, considerations like the economic status of the parties, their reputation, or the duration of the contract, while potentially relevant in specific contexts