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Contract > Terms > Flashcards

Terms Flashcards

1
Q

What is mere puff?

A

Statements of no legal significance.

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2
Q

What are representations?

A

Statements which induce the making of the contract which the parties do not intend to be binding

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3
Q

What are terms?

A

Statements of fact which the parties intend to be binding

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4
Q

What is the test for whether a statement is made with the intention to be binding?

A

Objective - what would reasonable person understand intention of the parties to be having regard to all circumstances?

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5
Q

When will the courts infer a statement to be intended to be binding?

A

Statement made during negotiations for purpose of inducing

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6
Q

How can the inference of a statement having the intention to be bound be rebutted?

A

Reasonable person wouldnt hold them bound

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7
Q

What is taken into account when deciding if a statement is a term or a representation?

A
  • timing
  • importance
  • reduction into writing
  • special knowledge/skill
  • assumption of responsibility
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8
Q

How do the courts approach importance of a statement?

A

so important that would not have entered into contract but for that statement

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9
Q

How can an intention to be bound be shown in express terms?

A
  • signed written contract
  • Incorporation by notice
  • Incorporation by course of dealing
  • conversation or verbal exchange
  • set out in writing and the other party agreeing
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10
Q

What did L’Estrange v Graucob show regarding intention to be bound where terms are written into contract?

A

Can intend to be binding even if didn’t read/understand the terms

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11
Q

What is the exception to there being an intention to be bound by signing a written contract?

A
  • Document signed was not one intended to have contractual effect
  • Party orally misrepresented meaning of the clause
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12
Q

How can a term be taken as intended to be binding where there is incorporation by notice?

A

Took reasonable steps to bring to Claimant’s attention

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13
Q

What was considered reasonable notice in Thompson v London, Midland & Scottish Railway?

A

reference to a different document

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14
Q

What steps should be taken where a clause is particularly adverse to the other party?

A

must clearly bring these to the other party’s attention

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15
Q

Can a clause be intended to be binding if notice is given after a contract is made?

A

NO

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16
Q

What is the requirement of a document which is giving notice of terms?

A

Intended to have contractual effect

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17
Q

How can terms be intended to be binding by course of dealing?

A
  • consistent over period of time
  • regular
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18
Q

How can parties reduce the possibility of a claim that there was binding oral terms alongside the written terms?

A

Entire agreement clause

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19
Q

What is an implied term?

A

inferred by the courts.

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20
Q

What ways can terms be implied by the courts?

A
  • by fact
  • by common law
  • by statute
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21
Q

Will the courts imply a contrary term where parties have made an unambiguous express provision in their contract?

A

No

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22
Q

How can terms be implied by fact?

A
  • Trade or professional customs
  • A course of dealing
  • Business efficacy
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23
Q

What are the requirements for a term to be implied for business efficacy?

A

Arrangement would otherwise be so unworkable that sensible people could not be supposed to have entered into it

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24
Q

What are the key statutes that imply terms into contracts?

A
  • Sale of Goods Act
  • Consumer Rights Act
  • Supply of Goods and Services act
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25
Q

What does the sale of goods act not apply to?

A

consumer contracts as defined in the Consumer Rights Act

26
Q

What are the terms implied by the sale of goods act?

A
  • Seller has title to sell
  • Correspondence with description
  • Satisfactory quality
  • Fitness for particular purpose
  • Sale by sample
27
Q

What is taken into account when assessing if goods are satisfactory quality?

A

a) Fitness for all the purposes for which goods of the kind in question are commonly supplied;
b) Appearance and finish;
c) Freedom from minor defects;
d) Safety; and
e) Durability

28
Q

What are the exceptions to goods being satisfactory quality?

A
  • Defects specifically drawn to buyer’s attention before contract
  • buyer examines before contract
29
Q

What are the requirements for an implied term of fitness for a particular purpose?

A
  • Buyer makes known to seller a particular purpose for which goods being bought
  • implied term that reaosnably fit for that purpose
  • whether or not common purpose for those goods
30
Q

What is the exception where there is an implied term of fitness for a particular purpose?

A

circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the skill or judgment of the seller

31
Q

What are the implied terms where there is a sale by sample?

A
  • bulk will correspond with the sample in quality
  • Goods free from defect which would not be apparent on reasonable inspection of the sample
32
Q

What is the effect of s15A sale of goods act which modifies the remedies?

A

if the breach is so slight that it would be unreasonable for the buyer to reject the goods and repudiate the contract, should be treated as a breach of warranty

33
Q

What is the remedy where a breach of condition is treated as a breach of warranty?

A

Buyer can only claim damages

34
Q

Who is the burden on to prove that a breach was so slight that it would be unreasonable for a buyer to reject the goods?

A

Seller

35
Q

Which sale of goods act implied term cannot be restricted or excluded?

A

Implied title

36
Q

Which sale of goods act implied term can be restricted or excluded and for what reason?

A

satisfactory quality/correspondence with description/fitness for particular purpose/sale by sample
IF reasonable

37
Q

What are the terms implied by the supply of goods and services act for supply of services?

A
  • reasonable care and skill
  • within reasonable time
  • Paying a reasonable charge (consideration)
38
Q

What are the terms implied by the Consumer Rights Act for goods?

A
  • satisfactory quality
  • fit for any purpose consumer makes known to trader
  • match description
39
Q

What are the terms implied by the Consumer Rights Act for digital content?

A
  • satisfactory quality
  • reasonably fit for purpose
  • match description
40
Q

What are the terms implied by the Consumer Rights Act for services?

A
  • reasonable care and skill
  • reasonable price
  • reasonable time
  • anything said/written to consumer taken into account by consumer when:
    • deciding to enter contract
    • making decisions about service after entering contract
41
Q

What are the three remedies under the Consumer Rights Act for goods?

A
  • short term right to reject
  • right to repair or replacement
  • right to a price reduction or final right to reject
42
Q

What will goods/services have to be in order to get the remedies under the Consumer Rights Act?

A

Non conforming

43
Q

When is the remedy of short term right to reject available?

A

30 days from:
- ownership passed
- goods delivered
- notified consumer that required steps taken

44
Q

When is the remedy of repair or replacement available?

A

unless either impossible or disproportionate

45
Q

What is considered disproportionate for the purposes of the remedy of repair or replacement?

A

imposes unreasonable cost on the trader relative to other remedies and interests of consumer

46
Q

Is a consumer entitled to both a price reduction and final right to reject?

A

No

47
Q

When is the remedy of price reduction/final right to reject available?

A
  • after one repair/replacement, goods dont conform
  • consumer can’t require repair or replacement
  • required repair/replacement but trader not done so within reasonable time or without significant inconvenience to consumer
48
Q

What is the additional general rule for the remedy of price reduction/final right to reject?

A

Where exercised within 6 months, should be a full refund with no deduction for use

49
Q

What is the time limit for digital goods being considered non conforming?

A

6 months

50
Q

What are the remedies under the Consumer Rights Act for non conforming digital goods?

A
  • repair or replacement
  • price reduction
51
Q

What are the requirements for repair and replacement of digital goods?

A
  • within reasonable time
  • without significant inconvenience
  • not where impossible/disproportionate
  • nature/purpose of content material in judging reasonable time/significant inconvenience
52
Q

What are the requirements for price reduction of digital goods?

A
  • consumer cannot require repair/replacement
  • trader failed to repair/replace within reasonable time/without significant inconvenience
53
Q

When should a refund be given for digital goods?

A

within 14 days

54
Q

What are the requirements for remedies where digital goods have caused damage to a device/other digital content?

A

a) Trader supplies digital content under contract
b) Causes damage to device/other digital content
c) Device/digital content belongs to consumer
d) Damage would not have occurred if exercised reasonable care and skill

55
Q

What is the remedy where digital goods have caused damage to a device/other digital content?

A

repair or compensation

56
Q

When are services considered non-conforming under the Consumer Rights Act?

A

Breach reasonable care and skill

57
Q

What is the remedy available where services have not been performed in a reasonable time?

A

Price reduction

58
Q

What are the available remedies for non conforming services?

A
  • repeat performace
  • price reduction
59
Q

What are the requirements where a consumer requires repeat performance of services?

A
  • within reasonable time
  • without significant inconvenience to consumer
  • not if impossible
60
Q

When can a consumer claim a price reduction for services?

A
  • repeat performance not available
  • trader failed to repeat within reasonable time/without significant inconvenience
61
Q

What is asked when considering if an innominate term is a condition or a warranty?

A

Does breach deprive party substantially of the whole benefit intended to obtain in the contract

Contract (12 decks)

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