Contract terms

Question 1

What is distinguished between?

Answer 1

Terms, which form the contract, and

Mere representations - statements of opinion, which are unlikely to form part of the contract

Question 2

What do courts have to distinguish between when parties rely upon a matter discussed before the agreement?

Answer 2

Whether the issue is a term or a non-contractual representation.

Question 3

What do terms make?

Answer 3

Contractual obligations.

Question 4

What do representations make?

Answer 4

Nothing, it is not binding, it just encourages the other party to enter the agreement.

Question 5

Definition of representation?

Answer 5

Statements made before the contract which may or may not become one of the main terms of the contract.

Question 6

What are terms?

Answer 6

Subject matter of the contract and bind both parties to perform them in order for the contract to be complete.

Question 7

When are terms decided upon?

Answer 7

During negotiations or inserted into the contract. Express or implied.

Question 8

If matters are written into contract what do they become?

Answer 8

A term of the contract.

Question 9

Test to determine whether a term is included in a contract? 1

Answer 9

How important was the representation?

If very important, it is more likely to be made a term. Birch v Paramount

Question 10

Test to determine whether a term is included in a contract? 2

Answer 10

A party relies on the skill of the other making the representation.
Dick Bentley v Harold Smith

Question 11

Test to determine whether a term is included in a contract? 3

Answer 11

Was the written agreement signed?

If signed, courts assume both have read and agreed.

Question 12

Test to determine whether a term is included in a contract? 4

Answer 12

Representation is not a term unless the parties are aware of it when making the contract.

Question 13

Why do implied terms exist?

Answer 13

Because express terms cannot cover all eventualities and implied terms cover that.

Question 14

Two ways the law implies terms into a contract?

Answer 14

By fact during a dispute to see what the unexpressed intentions were, or
Implied by statute, regardless of what either party may have intended.

Question 15

Ways terms are incorporated into a contract through courts presumed intention of the parties:

Answer 15

Through custom - common practice over time.
Through common trade practices - industry specific.
To preserve business efficiency

Question 16

Will courts imply a term because it is reasonable?

Answer 16

No.

Question 17

Will courts imply a term if it is necessary?

Answer 17

Yes

Question 18

Officious bystander test case?

Answer 18

Liverpool Council v Irwin

Question 19

Officious bystander test?

Answer 19

If a bystander were to suggest a provision in their agreement, they would respond with a common ‘Oh, of course!’

Question 20

Terms implied by statute:

Answer 20

Consumer Rights Act 2015