Incoporation of Terms

Question 1

Totality of evidence must be considered

Answer 1

Heilbut Symons and Co v Buckleton

Question 2

Importance of pre-contractual statement, if statement is grounds of party contracting, it is a term, not representation (hops and sulphur)

Answer 2

Bannerman v White

Question 3

Non-expert’s false representation not a term

Answer 3

Oscar Chess v Williams

Question 4

Specialist’s false representation a term

Answer 4

Dick Bentley v Harold Smith Morots

Question 5

If responsibility is assumed, it is an term (stop inspection of horse, give assuranes)

Answer 5

Schawel v Reade

Question 6

If unclear whether responsibility has been assumed, it is a representation

Answer 6

Ecay v Godfrey

Question 7

If statement is made with enough time for buyer to verify it, it is a time

Answer 7

Routledge v McKay

Question 8

Term does not supply reduction of contract into writing

Answer 8

Inntrepeneur Pub v East Crown

Question 9

Parole evidence rule: neither party can add to, vary or contradict terms in written agreement

Answer 9

Jacobs v Batavia

Question 10

Exception to parole evidence rule: express oral assurance

Answer 10

Couchman v Hill

Question 11

Exception to parole evidence rule: collateral contract (statement incorporated into a second contract)

Answer 11

City and Westminster Properties v Mudd

Question 12

Damages can be claimed for breach of collateral contract

Answer 12

J Evans and Son v Andrea Merzanio

Question 13

Incorporation by signature regardless of whether it is read

Answer 13

L’Estrange v Graucob

Question 14

Signed document must have contractual effect, administrative document not enough

Answer 14

Grogen v Robin Meredith Plant Hire

Question 15

Clause in signed document can be unincorporated if misrepresented by a party at signing

Answer 15

Curtis v Chemical Cleaning and Dyeing Co

Question 16

Clause in signed document can be unincorporated if there is misunderstanding of its meaning through n fault of signee (glasses)

Answer 16

Saunders v Anglia BS

Question 17

Incorporation by reasonable notice

Answer 17

Parker v South Eastern Railway Co

Question 18

Notice must be give prior to incorporation of the contract

Answer 18

Thornton v Shoe Lane Parking

Question 19

Terms must be contained or referred to in document intending to have contractual effect, ticket doesn’t count, but may be possible to infer through past business relationship

Answer 19

Chapelton v Barry UDC; British Crane Hire Co v Ipswich Plant Hire

Question 20

Reasonable steps must be taken to bring notice to party’s attention; (purchase of timetable)

Answer 20

Parker v South Eastern Railway Co; Thompson v London, Midland and Scotland Railway Co

Question 21

The more onerous the clause, the more must be done to give reasonable notice (red hand)

Answer 21

Spurling v Bradshaw; Interfoto Picture Library v Stiletto Visual Program

Question 22

Incorporation through course of dealing: must be consistent (3 or 4 transactions per month); not enough for 3 or 4 per year

Answer 22

Henry Kendale and Sons v William Lillico and Sons; Hollier v Rambler Motors

Question 23

Term can be implied by custom; must be certain, well-known, reasonable and intended to have legal consequences (12,000 is 10,000 in Suffolk)

Answer 23

Smith v Wilson

Question 24

Terms implied by fact: business efficacy test

Answer 24

The Moorcock

Question 25

Terms implied by fact: officious bystander test

Answer 25

Shirlaw v Southern Foundries

Question 26

Lord Hoffman - fact must be reasonably understood and read in relevant background

Answer 26

Attorney-General of Belize v Belize Telecom

Question 27

Business efficacy test for fact, but need to answer Lord Hoffman's question

Answer 27

The Reborn

Question 28

Business efficacy test and officious bystander test restated

Answer 28

Marks and Spencer v BNP Paribas (2016)

Question 29

Terms implied by law:

Answer 29

Liverpool CC v Irwin

Question 30

Terms implied by law: standard isn't necessary, but what is reasonable and fair

Answer 30

Dyson LJ in Crossley v Faithful and Gould Holdings

Question 31

Terms Implied by statute

Answer 31

Saele of Goods Act 1979; Supply of Goods and Services Act 1982; Consumer Rights Act 2015

Question 32

Interpretation of terms: what is reasonable with all background knowledge of parties at time of contracting

Answer 32

Per Lord Hoffman in Investors Compensation Scheme v West Bromwich BS

Question 33

Interpretation of terms: background information is that relevant to the contract. Objective and contextual.

Answer 33

Lord Hoffman, Bank of Credit & Commerce International v Ali

Question 34

Interpretation: pre contractual terms excluded

Answer 34

Chartbrook v Persimmon Homes

Question 35

Interpretation: Give words natural or ordinary meaning, or if multiple, one making most commercial sense

Answer 35

Rainy Sky SA v Kookmin Bank

Question 36

Interpretation: help with words and syntax, but do not aid foolish party

Answer 36

Arnold v Britton

Question 37

Objective and contextual approach to interpretation confirmed by Lord Hodge

Answer 37

Woods v Capita Insurance Services

Question 38

Classification of terms: condition if at root of contract (remedy is damage or termination - repudiatory breach)

Answer 38

Lord Reid, Schuler v Wickman

Question 39

Classification of terms: warranty if not at root of contract (Sale of Good ACT 1979, they are collateral to main purpose of contract)

Answer 39

Bettini v Gye

Question 40

Classification of Innominate Term: if breach deprives innocent party of substantially the whole benefit of the contract, it is condition, if not, warranty. (Remedy dependent on seriousness of the breach)

Answer 40

Lord Diplock, Honk Kong Fir Shipping v Kawasaki

Question 41

Examples of innominate term: 1. sufficiently serious, 2. not sufficiently serious, 3. time clause as a condition

Answer 41

1. The Mihalis Angelos 2. The Hansa Nord 3. Bunge Corporation v Tradax

Question 42

Construction of exemption clauses: Read narrowly

Answer 42

Wallis, Son and Wells v Pratt and Haynes

Question 43

Exclusion clauses read more narrowly than limitation clauses

Answer 43

Alisa Craig Fishing v Malvern Fishing

Question 44

Exclusion clause cannot exclude liability for providing used car, as contract stipulated new one

Answer 44

Andrew Bros v Singer

Question 45

Exclusion clause for car's condition not applied as item did not qualify as car owing to damage

Answer 45

Karsales v Wallis

Question 46

Liability for fundamental breach can be excldued

Answer 46

Photo Productions v Securior Transport

Question 47

Liability for negligence can be excluded: 1. If clause expressly exempts a person for negligence, 2. If clause does not expressly exempt a person, court must consider if words are wide enough to cover negligence 3. If words are wide enough, can head of damage be based on some other ground than negligence (Hollier v Rambler Motors)

Answer 47

Lord Morton in Canada Steamship

Question 48

Exclusion clauses in non-consumer contracts

Answer 48

Unfair Contract Terms Act 1977

Question 49

Exclusion clauses in consumer contracts

Answer 49

Consumer Rights Act 2015