Chapter 4 Cases From 2017 Syllabus Flashcards
Bannerman v White 1861
Important statement =term
Distinguish a rep from a term
When a statement is a term
The importance attached to the representation
If it can be shown that the person to whom the statement was made would not have contracted if the statement had not been made then statement is likely to be a term rather than a representation
Distinguish a rep from a term
Birch v Paramount Estates ltd 1956
📃
Reduction of statement into writing usually required for it to be a term
In this case, although the statement has not been reduced to writing the coa still found that it was a term
Routledge v Mc Kay 1954
⏱
Distinguish a rep from a term
Length of time between statement and the contract starting
The time between the statement and the contract meant it was NOT a term
Oscar Chess v Williams 1957
🚙
Distinguish a rep from a term
Specialist skills of statement maker
Morris car.
As the buyer had specialist knowledge and the seller didn’t, the buyer could not take the sellers promise to be a contractual term
L’estrange v Graucob 1934
🖊
How exclusion clauses can be written into contracts
Implied terms
Incorporated by signature
If a party signs a written doc containing contractual terms he is bound by them whether or not he has read them
Olley v Marlborough court hotel 1949
🖋⏲
Exclusion clauses
Incorporated by notice
Terms must be communicated to the person signing the contract before they sign it
Hollier v rambler motors 1972
Garage
Exclusion clauses
Incorporated by a course of dealings
D garage owner tried to rely on an exclusion clause - it was decided that there was no ‘course of dealing’ at the time. The court decided that the defendants could not exclude themselves of liability.
British Crane Hire Corp Ltd v Ipswich Plant Hire (1975).
Exclusion clauses
Incorporated by common understanding of the parties
A term was incorporated into contract on the basis that the parties were in the same trade and such clauses were common in that industry
Interfoto picture library v Stiletto 1989
Onerous and unusual
Exclusion clauses
Onerous clauses must be drawn to the attention of the other party
Statement was not a binding term as it was so unusual and onerous that it should have been brought to the Ds attention Ina more explicit way
Liverpool city council v Irwin 1976
🏢and rubbish
Terms implied by the courts
Terms implied by law as a matter of policy (implied by the courts)
The hol implied into a tenancy agreement a term that the landlord would take reasonable care to ensure that the common parts of a block of flats were free of rubbish
The Moorcock 1889
🛳
Terms implied on particular facts
Business efficacy test
Facts – The claimant entered into a contract with the defendants to dock and unload cargo from his ship at their wharf on the Thames. The ship was grounded at the jetty at low tide and broke up on rocks. The claimant sued for the damage to his ship. The defendants claimed that there was no express term relating to the safety of the ship and, as such, they could not be liable for breach of contract.
Legal principle – The court held that there was an IMPLIED TERM in the contract that the ship would not be damaged. This term was necessary in order to give the contract business efficacy. Therefore the defendants were liable for breach of this implied term.
Shirlaw v southern foundaries 1939
Terms implied on particular facts/ the officious by stander test
“If, while the parties were making their bargain an officious bystander were to suggest some express provision in it for the agreement, they would testify supress him with a common “oh of course”
Concerning: terms implied in fact
Officious bystander test
Poussard v Spires and pond 1876
Opera singer
Conditions
Opera singer contracted to sing beginning on the 28 Nov. She was ill and wasn’t avail til 4 Dec, by which time the company had given he role to someone else.
Defendants were entitled to treat the contract as ended
Bettini v Gye 1876
Opera singer
Warranty
Singer 2 days late for a reversal period b4 opera. The rehearsal clause was a warranty not a condition and therefore the company couldn’t treat the contract as ended but could claim damages to compensate for lost days
Hong Kong fir shipping v Kawasaki 1962
Inmominate terms
Coa held that the term in question was an inmominate term that in this case was a warranty rather than a condition
