Terms

Question 1

What is the remedy for a breach of a condition?

Answer 1

The right to repudiate the contract plus the right to sue for damages.

Question 2

What is the test for identifying if a term is a condition?

Answer 2

Did the parties intend, at the time of contracting, that any breach of the relevant condition could result in the innocent party terminating?

Question 3

What is the remedy for breach of a warranty?

Answer 3

The right to sue for damages.

Question 4

What is the remedy for breach of an innominate term?

Answer 4

Depends on whether the consequences of the breach deprive the innocent party of substantially the whole benefit of the contract. If yes, it is treated as a condition.

Question 5

What type of exemption clauses will have no effect under UCTA?

Answer 5

1. A contract cannot exempt liability for death or personal injury relating from negligence.
2. A contract cannot exempt liability for a breach of statutory terms about title to goods.

Question 6

Under UCTA, what type of exemption clauses can only be effective insofar as they satisfy the requirements of reasonableness?

Answer 6

1. Clauses seeking to exclude/restrict liability for any loss (other than death or personal injury) resulting from negligence.
2. Clauses seeking to exclude/restrict implied terms in SGA about the quality of goods.
3. If a contract deals on written standard terms of business, it cannot exclude/restrict: liability for breach of contract; right to render contractual performance substantially different from what was reasonably expected; or right to render no performance at all.

Question 7

What is the reasonableness test under UCTA?

Answer 7

Reasonableness should be whether the term was fair and reasonable to include having regard to the circumstances which were, or ought reasonably to have been, known or in the contemplation of the parties when the contract was made.

Question 8

What type of exemption clauses will not be valid under CRA?

Answer 8

1. Attempts to restrict or exclude liability for death or personal injury resulting from negligence.
2. Attempts to restrict or exclude liability for the following implied terms: goods of a satisfactory quality; goods fit for a particular purpose; good as described.
3. Attempts to exclude the implied term that a service will be performed with reasonably care and skill.
4. Attempts to restrict the implied term that a service will be performed with reasonable care and skill will not be binding to the extent that it prevents the consumer from recovering the price paid.

Question 9

What is the effect of CRA on unfair clauses in consumer contracts?

Answer 9

Any term in a consumer contract is not binding if it is unfair.

Question 10

What is the test for identifying whether a term is unfair under the CRA?

Answer 10

A term is unfair if it is not in good faith and causes a significant imbalance in the parties rights and obligations under the contract to the detriment of the consumer.