Firstly I am no Legal expert or Legal professional and these are only my thoughts on the matter. I suppose in some circumstances they can impose legally enforceable terms on what you might call our rights. I will attempt to supply an example (this I have some touching knowledge of so can say with some degree of fact this has occurred):
There are many unsealed but legal roads in very poor condition within Australia particularly in what is termed the outback. You are legally entitled to travel on them, that might be considered a right of free passage, unfettered by private ownership of the land abutting those roads.
As a car owner a person may freely use that road and take on themselves the risk of damage or accident that this travel may cause (their insurance on the vehicle however may be voided depending on the risk they undertake). They may be warned by notice that the road is only suitable for 4WD traffic, and that normal 2 wheel drive cars are not suitable, but the risk is the personâs to take as is their right.
However, a person who hires a car unsuitable to travel on such unsealed roads may be given a contract that states the person is not to travel on those unsealed roads that are only suitable for 4WD vehicles. The person agrees to the contract.
The hire car is then driven on one of these roads by a driver who ignores the warning of the unsuitability of the road for their style of vehicle and sustains damage/breakdown to the vehicle by using it in a manner contrary to the contractual terms. The Hire Company would be able to enforce the contract breach by firstly seeking damages from the user, the user may disagree and it would be likely then heard in either a Civil & Admin Tribunal or perhaps a Court.
It would be extremely likely the Hire Company would win for breach of itâs terms of hire thus having a legally enforceable term in their contract with the user of the vehicle. That would be only one such enforceable right of contract. I know of such roads and I know some have breached similar conditions and have had to personally pay the cost of the damage and recovery this use had caused as the Insurance taken out did not cover the user for such use of the vehicle they had hired.
The ACCC does get involved when they see what they think are Unfair Contract Terms, particularly when it is the use of coercion by the one holding the power in the contract negotiations. The ACCC must argue their case as to why they believe the terms are unfair, it must be tested in a Court or the Contract issuer may also agree the terms are unfair and thus not enforceable.
Contract law can impose restrictions on some activity that might be termed ârightsâ and do so legally where the terms protect the rights of others when they also offer their âpropertyâ to another. That property may be Intellectual (IP), reputational or actual property, it may involve transfer of ownership or it may just be the use of that property for some limited or unlimited period.
As an another example is a games provider allows the use of a licenced game to be used by a player. The player for their payment and acceptance of the terms of use of the game ie the End User Licence Agreement obtains a right to use the game for their pleasure as long as that use is allowed by the EULA. These EULAs are legal as long as they are not unfairly onerous and that they may also be there to protect the rights of the supplier of their IP and even possibly protect or provide some benefit to others who may be also using the game. This may involve amongst others, things like controlling behaviour in game or when players attempt to break the game/s to gain some hacked advantage when playing in MMPORGs would very likely be and some definitely are legally enforceable rights eg a person who circumvents a game/s content protection is definitely in breach and nowadays also criminally liable.
A person may choose to breach the terms of contracts but if that breach is detected they may then be required to prove they legally could do so or they may face not just civil penalties but may also face imprisonment depending on what contract terms they breached.
ACCC 2013 Report on Unfair Contract Terms
ACCC 2010 Information publication titled âConsumers and unfair contract termsâ