implied and express terms Flashcards
(37 cards)
Terms of a contract
can either be specifically agreed between the parties (express terms\\\0
OR
Implied in the contract (neither party agree to it, they are just assumed to be in the contract)
The terms are the obligations of each party
express terms
can be made ietehr writing or orally
- if it is oral, we have to be sure that the statmnet made verballly is actually a term not just a reprentatin.
- if it is a term then you can sue for a breach of contract and the remedy will depend on what type of term it was i.e. warranty condition innominate
- if the statement is not found to be a term of teh contract, the remedy will be misrepresntation as it will be sen a a representation thathas been made.
factors to consider
- courts will take the following into account when deciding the importance attached to the representation
- special knowledge or skills of the person making the statement
- any time lag between making the statement and making the contract
- whether there is a written contract
the importance attached to the misrepresentation
if the statement is important to the contract, it will be seen as a term
e.g couchmen v hill
- an auction catalogue stated that a heifer was not pregnant. the auctioneer and the farmer selling the animal confirmed thus. The heifer was actually pregnant and died while calving. the statement was clearly important to the purchaser of the animal and so was taken as a contract term rather than a representation.
if the statement is important to the contract, it will be seen as a term
key case
couchmen v hill
couchmen v hill
an auction catalogue stated that a heifer was not pregnant. the auctioneer and the farmer selling the animal confirmed thus. The heifer was actually pregnant and died while calving. the statement was clearly important to the purchaser of the animal and so was taken as a contract term rather than a representation.
special knoledge/skill of the statement maker
e.g. a private seller of a car isn’t excepted to have the same level understanding about card as a deal
oscar chess v wiliams 1957
dick bently v Harold Smith Motors 1965
Oscar chess v Williams 1957
the private seller of a car believed it to be a 1948 model but was actually much older. this statement was not a term of the contract
time lag between making the statement and the making of the contract
if a contract is made some time between after negotiations and doesn’t refer to the statement that has been made during negotiations, its likely that the tstament doesn’t become a term of the contract
whether there is a written contract
teh court tends to pressume tgat everythinbg the parties wanted to include as a term of teh contract is put in the written contract
therefore, if itr is not in teh writeen contract it should be presumed tat it is a rerpesenattion and not atterm
implied through common law
terms can be implied through statute or common law
in common law, terms can be implied in 2 ways;
1. buissness ewffiecnecy and the officicous bystander
- by cutsom nor prior dealings between the parties
buissness efficacy and the officious bystander test
the courts will cosnider
- id the term necessry to make the contract effective
- if the parties to the contract had thought about it, would they have agreed nthat the suggested term was obviusly going to be in the contracrt
- was it se obvious that the term would go without saying
- buissness efficacy - power to produce the itended result i.e. if it was onbvioulsy intended to have that term, the courts will imply it
The Moorcock
key case for buissness efficacy and the officious bystander test
The Moorcock
The Moorcock
d owned a wharf with a jetty on the river thames. they agreed to dfovk ship and unload cargoes at teh wharf. Both parties were aware at the teime of contracting that this oculd involve the vessekl being there at olow tide, it broke up on a ridge or rock. The d stated there was no term coveing this. the court impied a term that the ship would be at a safe mooring and tat the ship would not be dammaged when it settl;ed a low tide.
the officious bystander test
- this is a way courts determine iuf unwritten terms should nbe impied intp the conyrtact or notr ]]in simple terms, shirlaw v Southern Dounderies 1939 explained - if someone (teh officious bystabnder) was standing nearby when the contract was being made, and they suggested including a partuclar term both parties would have said of course, that goeds without syaing
- terms will not be impied if the parties never would have agreed to it if the bystander sugfgested it or if they had thought about it
shell UK v Lostock Garage
the officious bystander test
shell suppied petreol and oil to lostock who in rtrun brougg those products ionly formshell. Shell thensuppied petrol to other garges at lower proces which fprced lostock to sell at a loss. lostivl argued that there was a term in the contract that shell wouldnt abnormally discrimante agaisnt it. The argumetfaled as sje;; wpuild never have agreed to such a term.
objective
marks and spencer v PNP 2015
marks and spencer v PNP 2015
in this bcase teh supremem court clarified that impied terms and their reaosnableness should be judged objectiviely - not looking at the actual parties and what they thought but wuth that of a reasonable person in their positioon.
They also outlines tat either teh officious bystander tets or buissness efficanct can be used
prior dealing/customer
if the parties have prior delaings, tat that prior conduct may indacte terms tpo be implied - hillas v arcos
hillas v arcos
if the parties have prior delaings, tat that prior conduct may indacte terms tpo be implied
hutton v warren
customers that have been established then this canbe animpied term
terms implied by statue - consume rights cat 2015
consume rights act is concerned with anything between a consumer and a business
consumer - an individual acting for purposes mainly outside of tat person’s trade/profession. a company cannot be a consumer
- trader - a person acting for purposes related top tehri trade can be a sole trade, company, or business partnership
- consumer rights act related to contract where goods are being transferred
section 9 cosnumer rights act 2015
s9 - the right of satisfactory quality
- this is an implied term into any contract where a business is selling goods to a consumer. the quality of the goods must be satisfactory
- objective test - what the reasonable person would consider satisfactory, taking into account
- any description of the goods
- the price or other consideration for the goods
-also takes into account their state and condition
S9 exceptions
the act will not apply
- when defects have been drawn to the consumers attention before the contract is made - they know about it
- the consumer examines the goods before the contract is made (if the examination would have revealed these defects)
- the goods have been sold after inspection of a sample and the defect would’ve been apparent on a reasonable examination of the sample
- whether the goods are satisfactory quality is objective tests based on the reasonable person not the individuals on the contract
