Terms & Exclusion Clause

Question 0

Remedy for term, representation and mere puff.

Answer 0

Terms -> repudiate + damages

Rep -> Misrep -> rescission + Damagea

Mere puff -> remedy

Question 1

3 types of pre-contractual statement.

Answer 1

Terms. Representation. Mere puff.

Question 2

Contractual Cartography Test. Case and judge.

Answer 2

Heilbut Symons v Buckleton.

Fletcher LJ.

Question 3

5 guidelines of ctt carto test.

Answer 3

KTV WI.

Knowledge of party.
Time.
Verification.

Writing.
Importance of statement.

Question 4

Importance of statement. Case and one liner.

Answer 4

Bay merman v White.

Beer brewer emphasized that the plant should not have sulphur.

Question 5

Knowledge of party. Case and one liner.

Answer 5

Oscar Chess v Williams.

The statement made by a member of the public (non expert) to a garage owner (expert) wa held to be an opinion and not a term.

Question 6

Reduced to writing considered term. Case.

Answer 6

Routledge v McKay.

Terms wil normally be statements incorporated in the contract.

Question 7

When contract is partly written party oral, courts wil look at all relevant surrounding circumstances.

Answer 7

Evans & Sons v Andrea.

Question 8

Courts will take into account duration between statement made and time of contract. Case.

Answer 8

Routledge v McKay.

Question 9

If a party suggest verification, it is unlikely to be considered a term.

Answer 9

Ecay v Godfrey.

Question 10

2 types of terms.

Answer 10

Expressed. Implied.

Question 11

4 ways of incorporation of terms.

Answer 11

Signature.
Reasonable notice.
Course of dealing.
Trade practices.

Question 12

Courts method in determining oral contracts. Case.

Answer 12

Thauke v Maurice.

Objective Interpretation.

What would a reasonable man have understood the term to be.

Question 13

Parole evidence and courts reluctance to admit extrinsic evidence. Case.

Answer 13

Jacobs v Bataria.

Question 14

The test to differentiate condition and warranty.

Answer 14

Factual Matrix Test.

Objectively assess the intention of the parties.

Question 15

Explain one main difference between condition and warranty.

Answer 15

Condition - vital to contract, goes to the root

Warranty - ancillary to contract

Question 16

Case for condition term.

Answer 16

Ponssard v Pond.

Actress employed for a whole season, but failed to turn up till 2nd week.

Question 17

Case showing warranty.

Answer 17

Bettini v Gye.

Require to arrive 6 days in advance before rehearsal but arrived only 3 says before.

Held: only a warranty

“It’s 6 days bitch!”

Question 18

Merely writing ‘condition’ doesn’t make it a condition. Case.

Answer 18

Schuler v Wickman.

Lord Reid.

Applies only if you know the effect and meaning. Cannot apply if it was just a label.

Question 19

The classification for not a term, not a warranty.

Case. And test used.

Answer 19

Innominate term.

Hong Kiong Fir v Kawasaki Kisen Kaisha.

Ex Post Facto Test.

Examine consequence of breach.

Question 20

Implied terms in fact. 2 test used to assess intention of parties.

Answer 20

Business efficacy test.

Officious Bystander test.

Question 21

Explain business efficacy in one line.

Answer 21

Is the term absolutely necessary in order for the contract to be workable.

Yes - implied term

No - not implied term

The Moorcock.