Contract Terms Flashcards
(6 cards)
Contract Terms
Express Terms - in written contract
Contract Scotland Act 1977
s.1 - presumption that if the contract is in writing then all the terms of the contract are only in the written document.
- can be rebutted - if parties can prove that something else was intended instead or that they made another agreement.
- rebuttal not applicable if there is an entire contract clause.`
Contract Terms
Express terms - negotiations
Most negotiations have no legal effect.
Some statements become terms of the contract - consider if the parties inted the statement to become part of the contract?
- think about timing and type of statement.
Contract Terms
Express terms - external sources of contract terms.
This is when contract terms are contained in an external document.
1. Is the document to be incorporated itself contractual in nature? e.g. train tickets are contractual. 2. Are the terms and conditions known to exist prior to formation? 3. Has sufficient notice been given? Incorporated term invalid if these tests gave failed.
Contract Terms
Express terms - incorporated by prior course of dealings
Can be incorporated by prior course of dealings.
Consider:
- consistency in the course of dealings,
- regular course of conduct,
- commercial relationship between the parties.
Conract Terms
Consumer Rights Act 2015
Applies to consumers, specifically part 2.
Regarding whether the term is fair - factors to take into account are in s.62
Contract Terms
Unfair Contract Terms Act
General rules, also reasonableness test
Applies to business-business contracts.
Regarding contract terms which attempt to exclude liability.
s.15 - scope of contracts involved.
s.24 - reasonableness test.
Smith v Eric Bush
- equality of bargianing power,
- availability of goods and services elsewhere,
- difficulty of task being performed,
- practical consequences of allowing the exclusion,
- insurance complications.
