terms Flashcards
(37 cards)
what is an express term in a contract?
statements that are made by the parties where they intend to be bound.
what are implied terms?
terms not communicated between parties but the law assumes they exists or decides they exists.
what is considered when deciding if it is a term in the contract? (there are 5 things to consider)
importance of the statement
timing of the statement
reduction of the contract into writing
special knowledge or skill of the person making the statement
assumption of responsibility
what is a term in a contract?
define the rights and obligations arising from the contract. (they are the contents of the contract)
what is a mere puff?
a statement of no legal significance
what is a representation? (is it binding)
statement of fact or law which induce the making of the contract which the parties do not intend to be binding
what is a term? (is it binding)
statement of fact which the parties intend to be binding
what is an untrue statement that is a representation?
misrepresentation
can a statement be a term and a representation?
yes therefore, if you breach it you can claim for breach of contract AND misrepresentation
what is the test/ question that needs to be asked to decide if a statement is a term or a representation?
objective test: ‘what would the reasonable person understand to be the intention of the parties, having regard to all the circumstances?’
what should be considered when asking the importance of the statement?
statement is a term if it can be shown C considered the statement so important that it would not have entered into the contract but for that statement
what should be considered when asking about timing of a statement to work out if it is a term?
if statement was made at the time of contracting
what should be considered when taking into account the special knowledge of a skill to work out if a statement is a term?
statement is a term when one party who makes the statement has special knowledge or info compared to other party
eg, one party is an expert in cars and car dealer selling to a woman who has no clue on cars
what should be considered when taking into account assumption of responsibility when determining if something is a term?
statement may be a term of contract when the vendor expressly accepts responsibility for the soundness of the sale item in question
if a contract is signed are the parties assumed to have intended to be bound?
yes
if a party does not understand or read the terms, are they bound by the terms in the contract?
yes - party can express an intention to be bound even if they do not understand or have read contract
if the document signed was one which was intended to not have contractual effect - are the parties bound?
no, the terms within it will to form part of the contract as there is no intention to be bound
what must a party do if they want to incorporate terms that are adverse to the other party?
when a clause is particularly onerous it needs to be ‘printed in red ink, with a red hand pointing to it, or something equally startling’.
how can terms be incorporated by notice?
one party must notify the other party of the terms - terms will form part of contract is reasonable steps have been taken to bring them to C’s attention.
what must a course of dealing be to allow it to be incorporated into the terms of a contract? (there are 2 things)
consistent + regular
what two things should be considered when working out if a term is incorporated by notice?
the timing (reasonable notice given before or at time of contracting)
contractual effect (intended to have contractual effect)
what must be proved for other ways of agreeing express terms to prove that the statement is a term of a contract?
parties adequately express an intention to be bound by those terms
what is an entire agreement clause?
a clause that provides that a particular document or set of documents constitutes the entire agreement between the parties
what are the two ways that an implied term can be?
implied in fact
implied in law
