Terms

Question 1

What is a term

Answer 1

A promise

Question 2

What is a representation

Answer 2

A non-promissory enticement to contract

Question 3

What is a term is breached

Answer 3

This is a breach of contract

Question 4

What is a representation is breached

Answer 4

This is misrepresentation

Question 5

Remedies for breach of contract

Answer 5

Damages to put in position they would have been in if contract was fulfilled
Recovery of losses in reasonable contemplation of parties when contracting
Elect to terminate or affirm contract

Question 6

Remedies for misrepresentation

Answer 6

Termination or damages to put in position before misrepresentation was made

Question 7

Are damages or termination always Avaliable for misrepresentation

Answer 7

No only if fraudulent or negligent

Question 8

Which losses can damages be awarded for following misrepresentation

Answer 8

Remoteness allows recovery of all losses regardless of foreseeability

Question 9

What is mere puff

Answer 9

Extravagant advertising not intended to have any legal consequences

Question 10

How to distinguish between a term and a representation

Answer 10

Objective test. Did the parties intend to be bound?

Question 11

Is an oral statement more likely to be a term or a representation if a written contract makes no mention of it

Answer 11

Likely to be a representation. Assume that it wasn’t meant to be included

Question 12

Is a statement more likely to be a term or a representation when the person to who it was made considered it so important they would not have otherwise contracted and made this clear to statement maker before statement was made?

Answer 12

Likely to be a term

Question 13

What is the parol evidence rule

Answer 13

Written contract is just what is written

Question 14

Why is the parol evidence rule too easy to get around

Answer 14

It doesn’t exclude implied terms and if there is no entire agreement clause it also doesn’t exclude oral implied terms

Question 15

What does an entire agreement clause do

Answer 15

It excludes oral implied terms

Question 16

Three ways that terms can be implied

Answer 16

Statute, custom, trade usage / business practice

Question 17

When won’t a term be implied

Answer 17

When it is inconsistent with an express term

Question 18

Terms implied by law

Answer 18

Terms implied as a matter of policy into all contracts of a particular type

Question 19

Terms implied by fact

Answer 19

Objectively assessed unexpressed intention of parties. Necessary to make the contract work

Question 20

What terms does the CRA imply into contracts

Answer 20

Title to sell
Correspond with description
Same quality and description as sample
Satisfactory Quality and fit for purpose when sold in course of business
Reasonable skill and care
Anything said or written about service by trader to consumer and taken into account by consumer is a term

Question 21

What does satisfactory quality mean in CRA

Answer 21

Objective reasonable person test

Excludes defects drawn to attention of buyer or buyer ought to notice on examination and did such exam

Question 22

Can liability for personal injury and death be excluded

Answer 22

No - CRA and UCTA

Question 23

When are contract terms ineffective due to CRA

Answer 23

When they are unfair

Question 24

What if a term in a consumer contract is unfair

Answer 24

Term is not binding but contract can continue without it

Question 25

Does the CRA fairness requirement apply to all terms in consumer contracts

Answer 25

No doesn’t apply to price and main subject matter

Question 26

Does the court always have to consider the fairness of terms in consumer contracts

Answer 26

Yes even if parties don’t raise the issue as long as the court has enough info

Question 27

Test for fairness CRA

Answer 27

Contrary to good faith, causing a significant imbalance in the parties rights and obligations under the contract to the detriment of the consumer

Question 28

What is good faith under CRA

Answer 28

``` Fair and open dealing Clearly expressed terms No concealed traps Not seeking to take advantage Plain language Average customer would be aware of the term ```

Question 29

What is a term in a B 2 B contract is unreasonable

Answer 29

Excluded and rest of contract continues

Question 30

Test of unreasonableness under UCTA

Answer 30

Term must be fair and reasonable having regard to the circumstances which were or ought to reasonably have been known or in the contemplation of the parties when the contract was made

Question 31

Requirements for an exclusion clause to apply

Answer 31

1. Incorporated as a term 2. Apply to the situation on its natural and ordinary meaning 3. Not be excluded by CRA or UCTA

Question 32

What is a consumer

Answer 32

Someone acting for purposes mainly outside their business

Question 33

What is a trader

Answer 33

Someone acting for purposes relating to business

Question 34

How to incorporate an exclusion clause as a term

Answer 34

Signature Reasonable notice Consistent dealings between parties including that term

Question 35

Once a doc is signed as you always bound by it even if you didn’t read it

Answer 35

Yes unless fraudulent or misrepresentation

Question 36

How to incorporate a term through reasonable notice

Answer 36

Reasonable steps to give notice Before contracting Would reasonable person think it was a contractual doc

Question 37

Is an indication of where terms can be found sufficient to incorporate them by reasonable notice

Answer 37

Yes

Question 38

How to ensure a particularly onerous clause is incorporated into a contract

Answer 38

It must be fairly and reasonably brought to the attention of the party

Question 39

Is an exclusion clause automatically onerous or unusual

Answer 39

No

Question 40

When can an exemption clause be overridden

Answer 40

When it is inconsistent with other terms or with an undertaken given before or at the time of contracting

Question 41

What is a limitation clause

Answer 41

A clause limiting liability to a fixed figure rather than denying all liability

Question 42

What is an exclusion clause

Answer 42

A term denying all liability

Question 43

3 ways to incorporate terms

Answer 43

signature, reasonable notice and consistent course of dealing

Question 44

are you always bound by a contract you have signed

Answer 44

yes even if you haven't read it, unless misrepresentation

Question 45

when is a term incorporated by reasonable notice

Answer 45

reasonable notice before or at time of contracting would RP think it is a contractual doc and expect terms more onerous terms must be brought to attention with more effort exemption must be legible

Question 46

when is a term incorporated by consistent course of dealings

Answer 46

parties had lots of dealings in the past of exactly the same terms

Question 47

are damages and termination always available for breach of contract

Answer 47

damages are available as right but termination will depend on what type of term was breached

Question 48

is a term called a condition always a condition

Answer 48

no - just because it was called a condition doesn't mean it is one

Question 49

4 ways to imply terms into contracts

Answer 49

facts (needed to make contract workable), custom (reflects customs of that trade but not if conflicting with express term) law (law considers it necessary) statute

Question 50

implied terms for B2B contracts for sale of goods and supply of goods and services

Answer 50

B2B goods contracts - Sale of Goods Act 1979 B2B contracts for works/ services Sale of Goods and Services Act 1982 match description, satisfactory qualify ICB and fit for purpose (told expressly or impliedly) reasonably rely on skill/knowledge - conditions reasonable care/skill, time, sum - innonimate terms

Question 51

implied terms for B2C contracts for sale of goods and supply of goods and services

Answer 51

``` CRA 2015 49- care and skill 51- reasonable sum 52- reasonable time 11- match description 10- fit for purpose 9 - satisfactory quality ```

Question 52

remedy for breach of s52 CRA

Answer 52

price reduction

Question 53

remedy for breach s49 CRA or any term in contract where performance doesn't comply with what is required

Answer 53

repeat performance if reasonable or price reduction

Question 54

remedies for breach of s9-11 CRA

Answer 54

reject and full refund (30 days or as long as perishables reasonably expected to last) repair or replacement (6 months) (no right if perishables and conformed on day of contract) price reduction to reflect consumer use (6 months) (no right if perishables and conformed on day of contract)

Question 55

2 tests to tell if an exemption clause can be relied on

Answer 55

incorporation of clause as a term in the contract and construction of clause (does it cover this situation)

Question 56

in whose favour is any ambiguity in the construction of exclusion clause

Answer 56

constructed against person trying to rely on it

Question 57

when does reasonableness (UCTA) apply to exemption clauses

Answer 57

loss or damage due to negligence (not PI or death) breach of statutory implied terms relating to goods (description, quality and fit for purpose)n breach of an express term contained in standard written terms of person seeking to exempt liability

Question 58

factors in sch 2 UCTA to be considered during reasonableness test

Answer 58

strength of bargaining power of parties inducement to contract / accept exclusion clause chance to enter into other contract without exemption clause whether they knew or ought to know of clause (consider previous dealings) if exemption clause applies when condition is not complied with - was it reasonable when contracting to expect compliance would be possible and for limitation clauses: resources D could expect to have available to meet liability if it arises e.g. insurance

Question 59

what cannot be excluded from a B2C contract

Answer 59

cannot exclude liability for breach of s9, 10 , 11, , 49, 51 or 52 CRA cannot make remedy hard, exclude remedy, put them at a disadvantage for pursuing remedy cannot exclude or restrict rules of evidence or proceedure

Question 60

can a third party rely on an exemption clause

Answer 60

not unless they are named in the exemption clause or a member of a class entitled to benefit from it then can rely on it the same as a contracting party