20-Contract Terms: General And Specific To Consumer Contracts

Question 1

What are the two KINDS of terms?

Answer 1

Express

Implied

Question 2

3 types of term?

Answer 2

1) a condition-breach will lead to repudiation
2) a warranty-breach may lead to damages
3) an innominate term-neither a warranty or condition

Question 3

What is a ‘condition’ regarding contract terms?

Answer 3

A term in a contract that is central to it. Breach of which may allow for repudiation.

Question 4

A term in a contract that is central to it. Breach of which may allow for repudiation.

What is this the definition of?

Answer 4

A condition

Question 5

What is a ‘warranty’ regarding contract terms?

Answer 5

A minor term in a contract, breach of which may lead to damages only.

Question 6

A minor term in a contract, breach of which may lead to damages only.

What is this the definition of?

Answer 6

A warranty

Question 7

What is an ‘innominate’ term, regarding terms in a contract?

Answer 7

A term that is neither a warranty or condition in a contract.

Question 8

A term that is neither a warranty or condition in a contract.

What is this a definition of?

Answer 8

An innominate term

Question 9

What is repudiation?

Answer 9

The ending of a contract by one of the parties to the contract.

Question 10

The ending of a contract by one of the parties to the contract.

What is this the definition of?

Answer 10

Repudiation

Question 11

What is ‘rescission’?

Answer 11

An equitable remedy where a judge decides to place parties back into their pre-contractual position.

Question 12

An equitable remedy where a judge decides to place parties back into their pre-contractual position.

What is this the definition of?

Answer 12

Rescission

Question 13

What case is an example of ‘conditions’ being crucial?

Answer 13

Poussard v Spiers and Pond (1876)

Facts: An actress with a lead role did not perform at all of her contracted shows. Breach of contract led to repudiation.

Question 14

Poussard v Spiers and Pond (1876)

Answer 14

Principle: terms that are ‘conditions’ in a contract are crucial.

Facts: An actress with a lead role did not perform at all of her contracted shows. Breach of contract led to repudiation.

Question 15

What case is demonstrates that breach of terms that are ‘warranty’ in a contract will not lead to repudiation?

Answer 15

Bettini v Gye (1876)

Facts: Singer did not attend some rehearsals, contract was ended but this was wrong and damages were awarded to the singer.

Question 16

Bettini v Gye (1876)

Answer 16

Principle: Breach of terms that are ‘warranty’ may only lead to damages.

Facts: Singer did not attend some rehearsals, contract was ended but this was wrong and damages were awarded to the singer.

Question 17

What case is an example of ‘innominate terms’ in a contract?

Answer 17

Hong Kong Shipping v Kawasaki KK (1962)

Facts: Ship that was chartered to Kawasaki was in need of repair and 18 weeks work was lost whilst in repair.

Question 18

Hong Kong Shipping v Kawasaki KK (1962)

Answer 18

Example of: a case dealing with ‘innominate terms’.

Facts: Ship that was chartered to Kawasaki was in need of repair and 18 weeks work was lost whilst in repair.

Question 19

What might a breach of term lead to?

Answer 19

Breach of contract and or potential claim for damages.

Question 20

What may misrepresentation lead to?

Answer 20

Remedy for misrepresentation. As a pose to a breach of contract.

Question 21

4 things the courts will take into account regarding whether a statement is mere representation or a term.

Answer 21

1) Importance-attached to representation
2) Special Knowledge-or skill of person making statement
3) Time lag-between negotiation and formation of contract
4) Written contract-does it exist in the contract?

Question 22

What case demonstrates the principle of ‘importance attached to the representation’?

Answer 22

Coachman v Hill (1947)

Facts: Auction catalogue describes cow as not pregnant, but cow was and died. Statement taken as term (rather than representation) due to significance.

Question 23

Coachman v Hill (1947)

Answer 23

Example of: a case demonstrating ‘the importance attached to representation’.

Facts: Auction catalogue describes cow as not pregnant, but cow was and died. Statement taken as term (rather than representation) due to significance.

Question 24

What are two contrasting cases to demonstrate the principle of ‘special knowledge’ regarding representation in contracts?

Answer 24

1) Oscar Chess v Williams (1957)
Private car seller

2) Dick Bentley v HS Motors (1965)
Pro car dealer

Question 25

What case demonstrates that according to principle of ‘special knowledge’ someone WITH special knowledges statement will more likely be taken as a term rather than representation?

Answer 25

Dick Bentley v HS Motors (1965) Facts: Professional dealer sells car and states on 20k miles on clock when really there is 100k. Regarded as term rather than representation.

Question 26

Dick Bentley v HS Motors (1965)

Answer 26

Principle:statement maker with special knowledge is more likely to have statement regarded as term than representation. Facts: Professional dealer sells car and states on 20k miles on clock when really there is 100k. Regarded as term rather than representation.

Question 27

What case demonstrates that according to principle of ‘special knowledge’ someone WITHOUT special knowledges statement will more likely be taken as representation rather than a contract term?

Answer 27

Oscar Chess v Williams (1957) Facts: Private car seller believed car to be younger than it was. Statement judged to be representation rather than a contract term.

Question 28

Oscar Chess v Williams (1957)

Answer 28

Principle: someone WITHOUT special knowledge making statement will more likely be regarded as representation as a pose to a contract term. Facts: Private car seller believed car to be younger than it was. Statement judged to be representation rather than a contract term.

Question 29

What case demonstrates the principle of ‘time lag’ regarding the things judges would consider for statements being terms or representation?

Answer 29

Routledge v Mackay (1954) Facts: 6 days between negotiation and contract made a statement that was made but not written in contract was regarded as representation as a pose to a contact term.

Question 30

Routledge v Mackay (1954)

Answer 30

Demonstrates: a case where time lag between negotiation and formation made a statement representation as a pose to contract term. ALSO that a term written in a contract will be considered by judges too. Facts: 6 days between negotiation and contract made a statement that was made but not written in contract was regarded as representation as a pose to a contact term.

Question 31

What case also demonstrates that a ‘written contract’ will be considered by judges deciding whether a statement was representation or contract term?

Answer 31

Routledge v Mackay (1954) Facts: 6 days between negotiation and contract made a statement that was made but not written in contract was regarded as representation as a pose to a contact term.

Question 32

What statues cover business to business contracts?

Answer 32

Sale of Goods Act (1979) Sale of Goods and Services Act (1982)

Question 33

What statute covers business to consumer contracts?

Answer 33

Consumer Rights Act (2015)

Question 34

In what two ways can terms by implied by common law?

Answer 34

1) business efficacy and officious bystander test | 2) Custom or prior dealings between the parties

Question 35

What are the two parts to the test of business efficacy regarding terms implied in a business contract?

Answer 35

1) is the term necessary to make contract? | 2) If parties had thought of it, would they have included it?

Question 36

1) is the term necessary to make contract? 2) If parties had thought of it, would they have included it? What is this two-part test regarding?

Answer 36

Business efficacy regarding implied terms in a business contract.

Question 37

What is a case example for business efficacy?

Answer 37

The Moorcock (1889) Facts: Owners of wharf with Jerry where ship moored and ran aground. Both parties were aware but courts decided an implied term of contract is assured safe harbour of vessels.

Question 38

The Moorcock (1889)

Answer 38

Principle: business efficacy regarding implied terms in business contracts. Facts: Owners of wharf with Jerry where ship moored and ran aground. Both parties were aware but courts decided an implied term of contract is assured safe harbour of vessels.

Question 39

Regarding implied terms in business contracts, what case does the ‘officious bystander’ test come from?

Answer 39

Shirlaw v Southern Foundries (1939)

Question 40

Regarding implied terms in business contracts-the officious bystander test, what case demonstrates that if parties had considered a term and wouldn’t have agreed to it then this is not an implied term?

Answer 40

Shell UK v Lostock Garage (1977) Facts: By contract Shell supplies petrol to garage with agreement that garage would only buy from shell. When shell sold to other garages for less money, garage had to sell at loss. No implied terms because shell wouldn’t have agreed to not selling to other garages.

Question 41

Shell UK v Lostock Garages (1977)

Answer 41

Principle: officious bystander test, if terms had been considered and rejected then this is not an implied term. Facts: By contract Shell supplies petrol to garage with agreement that garage would only buy from shell. When shell sold to other garages for less money, garage had to sell at loss. No implied terms because shell wouldn’t have agreed to not selling to other garages.

Question 42

What two contrasting cases demonstrate the officious bystander test?

Answer 42

1) Shell UK v Lostock Garage (1977) No implied terms found 2) Egan v Static Control Components (2004) Implied terms found

Question 43

What case demonstrates terms implied by custom regarding terms implied in business contracts?

Answer 43

Hutton v Warren (1836) Facts: Custom meant that at end of tenant farmer lease there was an allowance for seed and labour on land.

Question 44

Hutton v Warren (1836)

Answer 44

Principle: terms implied by custom in business contacts. Facts: Custom meant that at end of tenant farmer lease there was an allowance for seed and labour on land.

Question 45

What case is an example of terms in business contracts implied by prior dealings with the parties?

Answer 45

Hillas v Arcos (1932) Facts: Option clause that lacked specific detail for purchase of further timber was honoured by courts to reflect previous dealings.

Question 46

Hillas v Arcos (1932)

Answer 46

Principle: terms implied in business contracts by prior dealings. Facts: Option clause that lacked specific detail for purchase of further timber was honoured by courts to reflect previous dealings.