Different Types Of Express Terms (conditions Warranties And Innominate Terms) No A03 Flashcards
What is an express term?
A term actually agreed by the parties either verbally or written
What can parties name express terms as?
-Conditions or warranties to show how important they are or a judge may need to decide what the of term it is
How important is a condition?
What can be done if a condition is breached?
What is an example of a condition in a phone contract?
-Very important term, goes to the root of the contract
-Can repudiate the contract and claim damages
-If buying SIM card to fit an iPhone then the SIM cards needs to actually fit the iPhone
What is the case for condition?
-Poussard v Spiers and Pond 1876
-Opera singer agreed to play the lead role in a performance, didn’t attend first performances. Given to someone else, when she turned up she was not allowed to perform in role
-She had broken her contract by not turning up for performances and as the lead singer it was important
-Condition in the contract so contract repudiated.
How important is a warranty?
What is a party entitled to do if one breaches a warranty?
What is an example of a warranty in a phone contract?
-Less important term
-Only claim damages
-If a phone stores 99 contacts instead of 100. Not central to the contract
What is the case for a warranty?
Bettini v Gye
-Opera singer contracted to perform at concerts and 6 days of rehearsal.
-Missed first 3 days of rehearsal so the theatre replaced him with someone else
-When turned up he was not allowed to continue contract
-Sued the theatre
-Breach of warranty so concert organiser could end the contract. Singer awarded damages for loss of earnings
What is an issue with the terms based approach and the case that goes with it?
-One party could escape a contract for a minor breach just because the term was labelled a condition
-Arcos v Ronaasen
-D repudiated the contract for breach of condition (thickness of timber) which wasn’t really important.
-Real reason he wanted to escape was because he found cheaper elsewhere
-Court allowed D to repudiate the contract
What is an innominate term?
A term in a contract that is not defined as a condition or a warranty
-Remedy depends on how seriously the term has been breached
What can a party do if an innominate term has been breached?
If it has been seriously breached then it will be treated as a condition and the other party can repudiate and claim damages
If not serious then treat as a warranty and can only claim damages
What is the case for innominate terms?
Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha
-D’s hired ship for 2 years (104 wks) and the term that was breached was ‘in every way fitted for ordinary cargo service’
-Court treated as innominate term
-18 wks were lost while the ship was repaired so 86 weeks remained.
-decided it was a breach of warranty so only damages
A03 Point for conditions and case
-Parties can still label a term a condition if they want to avoid the breach based approach of innominate terms
-Lombard v Butterworth: court respected the way that an express term was labelled by parties but in some cases the court has ignored this and treated the term as innominate
Case for where the court ignored a term labelled as a condition and treated it as innominate
Schiller v Wickman
-c had labelled term condition and wanted to repudiate contract as had been breached (few weekly visits missed)
-court reclassified as innominate and only awarded damage as trivial
