Representation v term Flashcards
(8 cards)
what is the difference between express and implied terms?
Terms of a contract can either be specifically agreed between the parties (express terms) or
Implied in the contract (neither party agree to it, they are just assumed to be in the contract).
what is an express term and how can it be made?
Can be made either in writing or orally.
If it is oral, we have to be sure that the statement made verbally is actually a term not just a representation.
If it is a term, then you can sue for 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 the contract, the remedy will be misrepresentation as it will be seen as a representation that has been made.
:
what will courts consider when deciding a term?
Courts will take the following into account when deciding:
The importance attached to the representation.
Special knowledge or skill of the person making the statement.
Any time lag between making the statement and making the contract.
Whether there is a written contract.
Couchman v Hill:
If the statement is important to the contract, it will be seen as a term.
E.g. Couchman v Hill (1947):
An auction catalogue stated that a heifer was not pregnant. The auctioneer and the farmer selling the animal confirmed this. 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 knowledge/Skill = Oscar Chess v Williams + Dick Bentley v Harold Smith Motors
E.g. a private seller of a car isn’t expected to have the same level of understanding about cars as a car dealer.
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.
Dick Bentley v Harold Smith Motors (1965):
The car dealer stated that the car had done 20,000 miles when in fact it had done 100,000 miles. Even though the statement wasn’t written in the contract, it was taken to be a term of the contract rather than a mere representation.
Time lag between statement and contract:
If a contract is made some time after negotiations and doesn’t refer to the statement that has been made during negotiations, it’s likely that the statement doesn’t become a term of the contract.
Written contracts:
The court tends to presume that everything the parties wanted to include as a term of the contract is put in the written contract.
Therefore, if it is not in the written contract it should be presumed that it is a representation and not a term.
Custom and statute law:
custom - business efficacy and officious bystander test and the CRA 2015
