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Contract > Contents of a Contract > Flashcards

Contents of a Contract Flashcards

1
Q

Express terms in a contract?

A

entered into a contract by one or both parties

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2
Q

What are express terms?

A

Expressly undertaken and agreed by the parties.

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3
Q

What forms can express terms be in?

A

written
oral

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4
Q

what are implied terms?

A

not agreed or mentioned but implied by the parties in certain circumstances

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5
Q

3 ways implied terms can be implied?

A

common law
statutes
courts

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6
Q

Incorporation of terms in a written contract?

A

all the writing will constitute the whole contract.

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7
Q

Parties can’t adduce [BLANK] evidence to add or vary the contract.

A

extrinsic

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8
Q

Examples of extrinsic evidence?

A

oral statements
written material

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9
Q

Exceptions to the ‘parole evidence rule’

A

rectification
partially written agreements
implied terms

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10
Q

written term can be incorporated into the contract in 3 ways?

A

signature (regardless of whether read or understood).
reasonable notice (more unusual or onerous - greater the notice to incorporate it)
previous course of dealing (must be consistent and regular)

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11
Q

B2B contracts - SGA 1979
Description?

A

S13(1) - contract for the sale of goods by description.
Implied term that goods will correspond to the description.

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12
Q

B2B contracts - SGA 1979
Satisfactory Quality?

A

S.14(2) implied term that goods supplied are of satisfactory quality.

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13
Q

B2B contracts - SGA 1979
Standard of quality?

A

S14(2)(a) - goods are of satisfactory quality if met at the standards of reasonable person.
Taking into account description, price, and other circumstances.

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14
Q

B2B contracts - SGA 1979
Fit for purpose?

A

s14(3) - buyer makes known the purpose for which the goods are being bought,
implied term that they are reasonably fit for that purpose, EXCEPT where buyer doesn’t rely on it
OR unreasonable to rely on the skill
or judgment of the seller.

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15
Q

B2B Contracts - SGSA 1982
Description?

A

s3(1) - contract for the supply of goods by description.
Implied term goods will correspond to the description.

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16
Q

B2B contracts - SGSA 1982
satisfactory quality?

A

s4(2) - goods are supplied in the course of business.
Implied term that goods will be of satisfactory quality.

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17
Q

B2B contracts - SGSA 1982
fit for purpose?

A

s4(5) - goods supplied in the course of business.
Buyer makes known to supplier his purpose for the goods.
Reasonably relies on the seller’s skill/knowledge.
Implied term that goods will be fit for that purpose.

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18
Q

B2B contracts - SGSA 1982
reasonable care and skill?

A

s13 - work or service done in the course of a business. Implied term that it will be carried out with reasonable care and skill.

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19
Q

B2B contracts - SGSA 1982
reasonable time?

A

s14 - work or service done in the course of a business.
No time of performance has been agreed,
implied that work will be done within reasonable time.

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20
Q

B2B contracts - SGSA 1982
reasonable price?

A

s15 - price of work or a service not been fixed. Implied term that a reasonable price will be charged.

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21
Q

B2C contracts - CRA 2015
satisfactory quality?

A

s9 - implied term that goods sold/supplied under contract are of satisfactory quality.

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22
Q

B2C contracts - CRA 2015
fit for purpose?

A

s10 - goods are supplied/sold in the course of business. Buyer makes known to supplier his purpose for the goods. Reasonably relies on the seller’s skill/knowledge. Implied term that goods will be fit for the purpose.

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23
Q

B2C contracts - CRA 2015
description?

A

s11 - contract for the sale/supply of goods by description. Implied term that goods will correspond to the description.

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24
Q

B2C contracts - CRA 2015
reasonable care and skill?

A

s49 - work or service is done in the course of a business. Implied term that it will be carried out with reasonable care and skill.

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25
Q

B2C contracts - CRA 2015
reasonable price?

A

s51 - price of work or service not fixed.
Implied term that reasonable price will be charged.

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26
Q

B2C contracts - CRA 2015
reasonable time?

A

s52 - work or service done in the course of a business. No time for performance been agreed. Implied that work will be done within a reasonable time.

27
Q

Which rights does a consumer have on breaches of the CRA 2015 regarding goods?

A

Short term right to reject and a full refund.
Non-perishable goods – 30 days.
Perishable goods – no longer than the goods would be expected to last.
Right to repair or replacement.
Right to price reduction OR final right to reject AND partial refund

28
Q

Which rights does a consumer have on breaches of the CRA 2015 regarding services/work?

A

Right to repeat performance
OR price reduction.

29
Q

Which rights does a consumer have on breaches of the CRA 2015 regarding reasonable time?

A

Right to an appropriate price reduction.

30
Q

Definition of a exemption clause

A

A term which purports to restrict or exclude a party’s liability and/or remedies.

31
Q

The common law regarding exemption clauses?

A

must be validly incorporated into contract
AND subject to rules of interpretation.

32
Q

Three ways exclusion clauses can be incorporated into a written contract?

A

signature
reasonable notice
OR previous course of dealing.

33
Q

An exclusion clause when properly interpreted must cover what?

A

the damage which has arisen.

34
Q

Rule of construction of an exemption clause.

A

interpreted against party seeking to rely on it.

35
Q

What happens if the exemption clause does not meet the incorporation and interpretation rules?

A

Does not form part of the contract.

36
Q

statutory controls on exemption clauses are contained in?

A

UCTA 1977 and CRA 2015.

37
Q

B2B contracts - UCTA 1977
liability for negligence?

A

s2 – liability for death or PI from negligence NOT excluded OR
limited.
Clause is void.
Liability for negligence (NOT death or PI) clause subject to reasonableness.

38
Q

B2B contracts - UCTA 1977
Liability for non-performance of express term?

A

s3 - contract made on one party’s standard business terms. Term NOT exclude OR restricted.
which substantially different from what is agreed.
Clause is subject to reasonableness.

39
Q

B2B contracts - UCTA 1977
Liability for breach of implied terms in contracts?

A

s6 and s7 - liability for breach of implied terms for the sale of goods under the SGA.
clause is subject to reasonableness.
liability for breach of implied terms for the supply of work and materials under SGSA 1982.
Clause is subject to reasonableness.

40
Q

When is reasonableness of an exemption clause assessed?

A

at the time of making the contract.

41
Q

which party has the onus of proving the reasonable of the exemption clause?

A

The party relying on it.

42
Q

5 factors the court considers in deciding whether the clause is reasonable.

A

*Strength of the parties’ bargaining positions.
*Customer received an inducement to agree to the term
OR could have entered into a similar contract with another party without agreeing the term.
*Customer knew
OR ought to have known of the term regarding trade custom
OR previous course of dealings.
*Exemption clause comes into effect ONLY if a particular condition is not met.
OR
*Goods were made OR are adapted to special order.

43
Q

B2B contracts - CRA 2015
definition of trader

A

trader (acting in purposes relating to their trade, business, or profession).

44
Q

B2B contracts - CRA 2015
definition of consumer

A

Consumer (acting completely outside OR mainly outside that individual’s trade, business, or profession).

45
Q

B2B contracts - CRA 2015
definition of unfair term

A

causes significant imbalance in the parties rights and obligations under the contract, to the detriment to the consumer.

46
Q

B2B contracts - CRA 2015
Liability for Negligence?

A

liability for death or PI resulting from negligence NOT excluded OR limited. Clause is non-binding BUT contract remains valid.

47
Q

B2B contracts - CRA 2015
Liability for fit for purpose?

A

liability for goods to be fit for a particular purpose NOT excluded OR restricted.
Clause is non-binding BUT contract remains valid.

48
Q

B2B contracts - CRA 2015
Liability for description?

A

liability for goods to be as described NOT excluded OR limited.
Clause is non-binding BUT contract remains valid.

49
Q

B2B contracts - CRA 2015
reasonable care and skill?

A

liability to perform a service with reasonable care and skill NOT excluded
OR restricted if it would prevent consumer getting a refund.
Clause is non-binding BUT contract remains valid.

50
Q

B2B contracts - CRA 2015
reasonable price and time?

A

liability to perform a service at a reasonable price
AND time NOT excluded OR restricted if it would prevent customer getting a refund.
Clause non-binding BUT contract remains valid.

51
Q

Three different terms?

A

conditions
warranties
innominate terms

52
Q

condition breached?

A

party can repudiate or terminate the contract (no further performance)
and claim damages.

53
Q

warranty breached?

A

damages only.

54
Q

innominate term breached?

A

parties have to see what the consequences are.

55
Q

What happens if the breach deprives the party of substantially the whole of the benefit?

A

innocent party entitled to terminate the contract.

56
Q

effect of the breach is serious?

A

condition

57
Q

effect of the breach is minor?

A

warranty

58
Q

definition of alteration promise

A

the party must show that it has provided additional consideration for that promise.

59
Q

Alteration promise treated as supported by consideration and enforceable when…

A

promise freely made AND promisor receives a factual or practical benefit from making the promise.

60
Q

Alteration promises to pay more?

A

performance of an existing contractual duty owed to the other party NOT a consideration for a promise of extra payment
UNLESS conferring a factual or practical benefit.

61
Q

Alteration promises to accept less?

A

part payment of an outstanding debt NOT consideration for a promise to pay less
UNLESS some additional consideration has been given for that concession.

62
Q

If no additional consideration has been given (alteration promises to accept less), the defence of promissory estoppel can be applied by the creditor if (3 factors)…

A

Clear promise that existing legal rights NOT be enforced AND such a promise was freely given.
Promise was intended to be binding AND was relied upon
AND
Inequitable to go back on the promise (e.g., there had been detrimental reliance).

63
Q
A

Contract (5 decks)

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