Representation

Question 1

Representation definitions

Answer 1

A precontractual statement made during negotiations in order to encourage the other party to contract

Terms of the contract: the obligations that the parties have agreed to
Express terms: stated terms which have been specified and agreed by the parties
Implied terms: implied into the contract by statute or courts

Question 2

Terms

Answer 2

Condition - failure to perform a condition would destroy the main purpose of the contract, if a condition is broken the other party can repudiate (end) the contract (Poussard v spiers and pond)

Warranty - a minor term within the contract therefore main purpose is not destroyed so no repudiation only damages (Bettini v Gye)

Innominate term - not a condition or warranty but will be looked at by the courts to decide (Hong kong shipping v Kawasaki)

Question 3

A01- representation

Answer 3

The courts will look at the following to decide whether a statement was a term or mere representation within a negotiation:
1) Importance attached to the representation (Couchman v Hil)
2) The knowledge or skill of the person making the statement, if made by a specialist it is likely to be a term (Oscar chess v williams)
3) The delay between the statement and he contract (Routledge v Mackay)
4) Whether there is a written contract