express and implied terms - w5 Flashcards
(11 cards)
express terms
mere representation and terms
representation vs terms
9.10 - 9.170
pre-contractual statements are not necessarily amount to a contractual term
- pufferies - representation - terms
mere representations and terms - depend on “intention of parties” assessed objectively: ellul and ellul v oakes 9.70, factors must be considered include:
- words and language used
- expertise of person making the statement
- the statement is of great importnace and timing of the statement
- the statement is in writing
express terms
factors to determine whether a statement is a term
representation vs terms
words and language used
- jj savage & sons v blakney 9.90
special expertise of person making the statement
- oscar chess v willaims 9.110
- dick bentley production v harold smith (motors) 9.130
the statement is of great importance and timing of the statement
- van den esschert v chappell 9.145
the statement is in writing
- equuscorp v glengallan investments 9.160
- high court explains why parties are bound by signed written documents
- l’estrange v graucob 9.300
express terms
parol evidence rule
9.180 - 9.270
rule of evidence - admissibility of term
parol evidence rule - prevents person from adducing extrinsic/oral evidence when there is a written contract
rule applies only when the contract is wholly in writing
- mastertons homes v palm assets 9.210
purpose - prevent a party from adducing extrinsic evidence to add to, vary, contradict terms of written contract
main exception: collateral contract
oral statement must be promissory in nature
- crown melbourne v cosmopolitan hotel 9.200
- terms of the collateral contract must not be insonsistent with the main contract
- hoyt’s v spencer 9.220
other exceptions to per 9.270
- to rectify a mistake
- to prove contingent condition
- to prove real consideration
- to prove no intention to enter into legal relations
express terms
incoporation of terms by signature
incorporate terms into a contract
9.280 - 9.520
importance of signing
- equuscorp v glengallan investments 9.160
once signed, bound whether read or understood unless fraud or misrepresentation
- l’estrange v graucob 9.300
unless vitiating factors (misrepresentation, duress, mistake) or claim for equitable or statutory relief
- toll v alphapharm 9.320
exception of misrepresentation
- curtis v chemical cleaning & dyring co 9.340
express terms
incoporation of terms by notice
incorporate terms into a contract
person relying on the term needs to show that he/she has taken reasonable steps to bring th eterm to the attention of the toher party before the contract is concluded
- thornton v shoe lane parking ltd 9.370
- ocenic sun line special shipping v fay 9.390
onerous/unusual terms, more notice
- interfoto picture library v stilleto 9.405
- baltic shipping v dillon 9.420
document must be contractual in nature - not mere receipts 9.430
express terms
incoporation of terms by course of dealings
incorporate terms into a contract
history of dealings
- balmain new ferry v robertson 9.490
dealings must be regular and uniform
dealings in previous transactions must be in a contractual document
- rinaldi & patroni v precision mouldings 9.520
express terms
terms implied in fact
terms implied under common law
10.10 - 10.290
bp refinery (westernport) v shire of hastings 10.80 - 5 requirements:
- reasonable and equitable
- necessary to give business efficacy
- so obvioud that it goes without saying
- capable of clear expression
- must not contradict any express terms
above test was adopted in codelfa construction v state rail authority of nsw 10.190
- what was the term that codelfa sought to imply?
- why did the high court decline to imply the term sought?
- how was the matter decided instead? what doctrine did the court apply?
express terms
terms implied by law
terms implied under common law
implied regardless of parties’ intentions, public policy considerations
- liverpool city council v irwim 10.250
test of necessity
- bryne v australian airlines 10.260
terms in employment contract - courts have declined to imply by law
- university of western australia v gray 10.270
- commonwealth bank of australia v barker 10.290
express terms
terms implied by custom or usage
terms implied under common law
custom or usages that have been practised in particular trade, profession or industry
- con-stan industries of australia v norwich winterthur insurance (australia) 10.210
- it is a question of fact
- custom relied on it so well-known and acquesced
- not contrary to express terms of agreement
- whether or not party had knowledge of it
express terms
consumer guarantess - australian consumer law (acl)
terms introduced by legislation
10.340 - 10.560
- person supplies in trade or commerce 5.370
- to a consumer - s3 10.360
- supply of goods ss51-59
for e.g. s54 - guaranatee as to acceptable quality
goods are of acceptable quality if fit for the purposes fhor which goods of that kind are commonly supplied, acceptable in appearance and finish, free from defects and safe
- supply of services ss60-63
for e.g. s60 - guarantee that services will be rendered with due care and skill
express terms
actions and remedies
terms introduced by legislation
- action against suppliers of services 10.550
- action against suppliers of goods 10.530
- action against manufacturer 10.560
- remedies for breach of consumer guarantees - depends on whether it is minor or major failure 10.490
