EXPRESS AND IMPLIED TERMS ESSAY Flashcards
(5 cards)
paragraph one and cases
Express Terms: These are terms that the parties have explicitly agreed upon and formed part of the contract. They are clearly stated either in writing or verbally.
stages of expressed terms.
Only certain documents are treated as forming part of the contract.
Tickets or booking confirmations often are.
Invoices and receipts are usually not binding, as seen in:
Buchanan & Co v MacDonald (invoice not binding)
Buchanan & Co supplied goods (shoes) to MacDonald.
An invoice was sent after the contract was formed (i.e., after the goods were ordered).
The invoice included a clause limiting liability for defective goods.
MacDonald later claimed the goods were defective and sought damages
McCutcheon v MacBrayne (receipt not part of contract)
The ferry company usually asked customers to sign a form (which included terms limiting their liability) when shipping goods.
In this case, no form or receipt was signed, and the terms were not clearly explained to McCutcheon.
The ferry sank, and the company tried to rely on the exemption clause from their usual paperwork to avoid paying for the lost car.
The House of Lords held that the clause wasn’t part of the contract, because McCutcheon didn’t sign or know about it—there was no consistent past practice, and he wasn’t properly informed.
paragraph two
implied terms
Implied terms in law are rules or conditions that are automatically included in a contract, even if they aren’t written down, to make the agreement work properly.A) Terms Implied by Law (Apply to certain types of contracts or all contracts)
* 📜 By statute (set out in Acts like):
○ Sale of Goods Act 1979 (e.g. goods must be of satisfactory quality)
○ Supply of Goods and Services Act 1982
○ Consumer Rights Act 2015
* ⚖️ By common law:
○ E.g. a solicitor has a duty of care to their client.
* 🌍 By custom or trade usage:
○ Common practices in an industry may be implied into contracts.
B) Terms Implied by Fact (For this specific contract)
* Only implied if:
○ The term is so obvious it goes without saying, or
The parties would’ve agreed to it if they’d thought about it during negotiations.
case; paragraph two
Ivey v Genting Casinos UK Ltd [2017] UKSC 67, where it was held that gambling contracts contain an implied term against cheating. used a way of orientating cards to cheat and manipulate the cheating.
paragraph three
Some contract terms are not valid if they treat the consumer unfairly.
The law says a term is unfair if it creates a big imbalance and isn’t honest or fair.
There’s a “grey list” that shows common examples of unfair terms (like one side being able to cancel but not the other).
examples of 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’tIf a term is unfair, it gets removed, but the rest of the contract still works.
In business-to-business contracts, other rules stop companies from avoiding or limiting responsibility unfairly.
case; paragraph three
Cuthbertson v Lowes (1870)
In this case, a farmer bought seed potatoes measured in bushels, which was an illegal unit of measure at the time.
The seller tried to rely on the strict contract terms to avoid responsibility.
The court ruled against the seller, emphasizing fairness and public interest, showing early concern about imbalance and unfair contract terms, similar to what the grey list protects against today.
