Classification of Terms

Question 1

1. Statement of rep

Answer 1

A statement which may influence the party into entering the contract but will not form part of the contract or be legally binding

Question 2

2. Express term

Answer 2

Agreed by both parties which is verbal or written and will be legally binding on both

Question 3

3. Term or rep

Answer 3

Term or representation the judge will consider relevant factors, for example the knowledge and skill of the person making the statement. If they have knowledge and skill in relation to the comments made it is legally, it is likely they will be terms

Question 4

4. Importance of state

Answer 4

The judge can also consider how important the statement was to C, if the statements are the reason for entering the contract, they are likely to be terms

Question 5

5. Written

Answer 5

If there is a written contract and the statements are not written within the contract, they are not likely to be terms

Question 6

6. Time lapse

Answer 6

If there is a time lapse between the statements made and the contract being formed, they are also not likely to be terms as the statement

Question 7

7. Condition

Answer 7

A condition is a term which is central to the contract and if it is breached the contract cannot be performed. C will be entitled to repudiate the contract (Poussard)

Question 8

8. Warranty

Answer 8

A warranty is minor term to the contract and more of an inconvenience if breached so C will only be entitled to damages (Bettini)

Question 9

9. Innominate term

Answer 9

An innominate term is a term which has not yet been classified (decided), a judge will decide whether the term is a condition or warranty depending on the outcome of the breach. For example, in Hong Kong Shipping the judge found the breach to only be a term as the ship was only unseaworthy less than 20% of the contract

Question 10

10. Written notices

Answer 10

Written notices must be on documents of contractual significance which both parties recognise, in Chapleton v Barry UDC the notice on the back of the ticket were not terms as a receipt was not expected to have contractual terms

Question 11

11. Harsh terms

Answer 11

Harsh terms cannot be incorporated into a contract unless attention has been drawn to them, in Blu Sky v Be Caring the onerous and harsh clause was not incorporated into the contact as they were not reasonably brought to the defendant’s attention

Question 12

12. Sign

Answer 12

Where a person has signed a document this will bind the parties to any terms within the contract even where the contract has not been read, in L’Estrange v Graucob the contract excluded any rights to repair which she did not read