implied terms

Question 1

implied terms

Answer 1

• terms that do not appear in the written contract or in the oral negotiations

Question 2

terms implied by prior dealings (common law)

Answer 2

• the prior conduct of the parties may indicate terms be implied
• hillias v acros

Question 3

terms implied through business efficacy (common law)

Answer 3

• if the parties have traded previously on certain terms but in the latest contract those terms have not been expressly agreed then the courts will deem them implied
• the moorcock

Question 4

terms implied by custom (common law)

Answer 4

• the courts will recognise that in a particular area or trade, things are done in a certain way
• hutton v warren

Question 5

terms implied by statute

Answer 5

• consumer rights act 2015

Question 6

consumer rights act 2015

Answer 6

• applies to all contracts made on or after 01 october 2015 between a trader and consumer

Question 7

contracts to supply goods

Answer 7

• CRA implies various terms into contracts for goods

Question 8

section 9 CRA (contracts to supply goods)

Answer 8

• goods purchased must be of satisfactory quality

Question 9

things a reasonable person will take into account when assessing goods (contracts to supply goods)

Answer 9

• description of the goods
• price
• all other relevant circumstances

Question 10

things the courts consider when assessing goods (contracts to supply goods)

Answer 10

• appearance and finish
• freedom from minor defects
• safety
• durability
• grant v australian knitting mills

Question 11

s10 - fitness for purpose (contracts to supply goods)

Answer 11

• there is an implied term that the goods will be fit for that purpose regardless of whether it is a purpose for which goods of that kind are commonly supplied
• only applies where the consumer relies on the trader’s judgement
• baldry v marshall

Question 12

s11 - description (contracts to supply goods)

Answer 12

• s11(1): when goods are sold by description, there is an implied term that they will match the description
• s11(2): when goods are sold by sample, there is an implied term that the goods must match the sample
• re moore v landauer

Question 13

s20 short time right to reject (supply goods remedies)

Answer 13

• 30 days to reject
• period starts when the consumer takes possession/ownership
• rejection = consumer released from all contractual obligations
• must return the goods

Question 13

s23 right to repair or replacement (supply goods remedies)

Answer 13

• consumer can require the trader to repair or replace the goods
• trader must repair or replace within a reasonable amount of time without causing a significant inconvenience

Question 14

s24 right to price reduction or final right to reject (supply goods remedies)

Answer 14

• price reduction: can be as much as the full price of the goods
• final right to reject: entitled to a refund within 14 days of rejection

Question 15

s31 liability cannot be excluded (supply goods remedies)

Answer 15

• a term of contract under sections 9, 10 and 11 to supply goods cannot be excluded or restricted by the traders

Question 16

s49 - reasonable care and skill (contract to supply services)

Answer 16

• implied term that the trader will perform the service with reasonable care and skill
• thake v maurice

Question 17

s51 - reasonable price (contract to supply services)

Answer 17

• implied term that the consumer will pay a reasonable price for the service, and no more
• only applied where there has not been a price agreed as part of the contract

Question 18

s52 - performance within a reasonable period of time (contract to supply services)

Answer 18

• implied term that the trader must perform the service within a reasonable time
• applied only where there is no agreement as to how long the service should take

Question 19

s55 right to require repeat performance (supply service remedies)

Answer 19

• if the original service has not been performed with RCAS, the consumer can require the trader to perform the service again at their own cost and without significantly inconveniencing the consumer

Question 20

s56 right to a price reduction (supply service remedies)

Answer 20

• if the original service has not been performed within a reasonable time/a repeat performance isn’t possible, the consumer can require the trader to reduce the price by an amount appropriate to the severity of the breach