Express and implied terms Flashcards
(9 cards)
express term?
one which the parties have expressly agreed will form part of their contract.
implied term
one which the parties have not agreed between them, but which the court is willing to add into the contract (ie. to imply into the contract) in certain limited situations.
what is usually not part of a contract?
invoices
receipts
case; invoices
MacDonald sent invoices that incorrectly described the goods. Even after realising the mistake, MacDonald did not correct the invoices. Buchanan relied on what the invoices said and acted based on that information.
Court’s View:
The court said that when you send an invoice (or similar document) and then realise it’s wrong, you must correct it. If you don’t, it can be seen as fraud or misleading the other party
case; receipts
In McCutcheon v MacBrayne, when McCutcheon gave his car to the ferry company, he didn’t sign the usual risk note this time.
Instead, he was just given a receipt.
The receipt did not mention any special conditions (like not being liable if the ship sank).
Normally, customers would sign a risk note limiting the company’s responsibility, but this time there was no warning in the receipt and no signed form.
When the ferry sank, MacBrayne (the company) tried to argue that past times McCutcheon had signed a risk note meant he should automatically be bound by the same risk conditions now.
The court disagreed, saying that because there was no signed risk note and nothing mentioned in the receipt, McCutcheon wasn’t bound by any hidden terms.
case; ticket
Parker v South Eastern Railway Co (1877) 2 CPD 416; per Mellish L.J. at 422-423
* Mr. Parker left his bag in a cloakroom at a railway station and got a ticket.
* On the back of the ticket were terms limiting the railway company’s liability for lost items.
* Mr. Parker didn’t read the back of the ticket and later sued when his bag was lost.
what is the grey list in consumer rights act 2015
- If a contract term matches something on the list, it’s a strong sign it may breach s62 (i.e. be unfair).
🧾 Examples from the Grey List:
* Trader keeps the consumer’s money if the consumer cancels – but consumer can’t do the same.
* Consumer has to pay a very high fee for not meeting their side of the deal.
* Trader can cancel the contract at their discretion – but consumer can’t.
* Trader can terminate the contract without proper notice or valid reason.
* Consumer is bound by terms they didn’t get a real chance to read or understand before signing.
what is delictual liability
from causing harm outside the contract, like negligence)
case;delictual liability
MacKay v Scottish Airways (1948)
A man was a passenger on a Scottish Airways flight.
The plane crashed, and he died.
His family sued Scottish Airways, claiming delictual liability — meaning the airline was at fault and had a duty not to cause harm.
Scottish Airways tried to defend itself by pointing to contract terms that limited their responsibility (like small print on the ticket).
However, the court said the airline still had a duty of care under delict (independent from the contract).
