lecture five

Question 1

Entire agreement clause

Answer 1

Written contracts may contain an ‘entire agreement’ clause (CSA 1997, s1(3)).

Question 2

Timing

Answer 2

Closer to contract = more likely a term (Bannerman v White).

Question 3

importance

Answer 3

Importance: More important = more likely a term (Couchman v Hill).

Question 4

expertise and reliance

Answer 4

Expertise & reliance: Expert statement + reliance = likely a term Oscar Chess v Williams

Question 5

written contract omission

Answer 5

Written contract omission: If not included in writing, likely not a term (Routledge v McKay).

Question 6

Documents containing additional terms

Answer 6

• Tickets with contracts of carriage? Generally considered contractual
• Invoices? Generally not. (Buchanan & Co v MacDonald (1895) 23 R 264)
• Receipts? Generally not. (McCutcheon v MacBrayne 1964 SLT (HL) 28

Question 7

verification

Answer 7

Verification: Urging verification = likely not a term (Ecay v Godfrey); discouraging verification = likely a term (Hopkins v Tanqueray).

Question 8

Has sufficient notice been given?

Answer 8

Grayston Plant Ltd v Plean Precast Ltd

Question 9

When was notice given?(before contract concludes)

Answer 9

Thornton v Shoe Lane Parking Ltd

Question 10

Prior course of dealing

Answer 10

McCutcheon v MacBrayne Ltd

Question 11

Implied terms

Answer 11

• Terms implied in law
• Terms implied in fact

Question 12

Sale of Goods Act 1979 (business sales):

Answer 12

• s13(1): Goods must match description.
• s14(2): Goods must be of satisfactory quality.
• s14(3): Goods must be fit for buyer’s known purpose.
• s15(2): Goods sold by sample must match the sample and be free from hidden defects.

Question 13

Supply of Goods and Services Act 1982 (business services):

Answer 13

• s13: Services must be carried out with reasonable care and skill.
• s14(1): If no timeframe agreed, service must be done within a reasonable time.

Question 14

Consumer Rights Act 2015 (Key Points):

Answer 14

• Goods: Must be of satisfactory quality, fit for purpose, and match description/sample.
• Services: Must be performed with reasonable care and skill, within a reasonable time.
• Remedies: Right to reject, repair, replace, or price reduction if terms are breached.

Question 15

What does J & H Ritchie Ltd v Lloyd Ltd (2007) suggest?

Answer 15

A term is implied if necessary for business efficacy.

Question 16

What is required for business efficacy in implied terms?

Answer 16

The term must fulfill the intent to give the contract business efficacy (Crawford v Bruce).

Question 17

What is the ‘officious bystander’ test?

Answer 17

A term is implied if it’s so obvious that the parties would agree to it immediately.

Question 18

What does the ‘officious bystander’ test mean?

Answer 18

A term is implied if it’s something obvious that parties would automatically accept.

Question 19

What is the principle from Morton v. Muir Bros (1907)?

Answer 19

Terms are implied if they are necessary for protection and agreeable to both parties.

Question 20

Conflict with express terms?

Answer 20

A term cannot generally be implied into a contract which contradicts its express terms.
G.M. Shepherd Ltd v North West Securities Ltd

Question 21

Consumer Rights Act 2015 - Part 2

Answer 21

1. Scope: Applies to consumer contracts (s2(3), s76(2)).
2. Unfair Terms: Terms are non-binding if unfair (s62(1), s62(2)), causing imbalance or detriment to the consumer (s62(4) & s62(6)).
3. Contract Continuity: The contract remains if it can function without the unfair term (s67).
4. Grey List: List of terms likely unfair (Part 1 of Schedule 2).
5. Key Test: Is the term unfair and on the grey list?

Question 22

b) Exemption Clauses

Answer 22

1. Exclusion of Liability: Consumer contracts cannot exclude liability for death or personal injury (CRA 2015, s65).
2. UCTA 1977:
   o Exclusion for death/personal injury is void (s16(1)).
   o For other losses, clauses must be fair and reasonable (s16(1)).
3. Fair & Reasonable Test: Based on parties’ knowledge, bargaining power, and the ability to insure (UCTA s24).
4. Standard Form Contracts: Unfair terms in standard contracts are unenforceable unless fair and reasonable (UCTA s17).