Terms Flashcards
(30 cards)
express terms
Whatever the parties have expressly agreed on
implied terms
What the law has decided should be included in the contract
factors in incorporating express terms
The importance attached to the representation,
Special knowledge or skill affecting the equality of bargaining strength,
The time between making the statement and formation of the contract
Reducing the agreement, including the statement, to writing.
The importance attached to the representation
the more importance is attached to the statement by either party then the more likely it is that it is a term
Bannerman v White
Special knowledge or skill affecting the equality of bargaining strength
where statements made by an expert the more likely the terms are incorporated
Where there is no expertise or specialist knowledge the term is less likely to be construed as a term
Oscar Chess v Williams
The time between making the statement and formation of the contract
The longer the time between the statement being made and formation the less likely the statement was incorporated into the contract (unless the substance was repeated nearer formation) - Routledge v McKay
written evidence
where a contract is made in a written document and a statement made orally between the parties is not then included in the written document = a mere representation.
what are the two reasons implied terms will be incorporated
implied by fact
implied by law
implied by fact
Where terms are implied by fact, the court is trying to give effect to the presumed intention of the parties at the time of the contract.
officious bystander test
where it is so obvious that it goes without saying the terms should exist
Shirlaw v Southern Foundries
Terms implied to give business efficacy to a commercial contract
The Moorcock
Terms implied by custom or habit
if something has happened in a particular way over a long period of time then it is likely that it will be established that it has evolved into an actual and enforceable right
Hutton v Warren
Terms implied by trade
British Crane Hire v Ipswich
Terms implied because of the prior conduct of the contracting parties
where the parties to a contract have a history of dealing on particular terms, if those terms are not included in a later contract they may be implied into it
Hillas v Arcos
implied by law
it is being inserted into the contract irrespective of the wishes of the parties
implied by common law
Where the term is the type that should naturally be incorporated into a contract of the particular type and is an area not covered or not yet covered by statute
Liverpool CC v Irwin
implied by statute
Consumer Rights Act 2015 all goods supplied should:
s.9 be of a satisfactory quality
s.10 be fit for particular purpose
S.11 goods as described
S.20 - the short-term right to reject
S.22 - reject within 30 days and a refund given within 14 days
S.23 - the right to repair or replacement (the trader must do this within a reasonable time and without significant inconvenience to the consumer
S.24 - the right to a price reduction or the final right to reject
S.49 trader must perform the service with reasonable care and skill
S.52 service has to be performed within a reasonable time
a condition
A term so important that a failure to perform would render the contract meaningless as the term goes to the root of the contract
If breached, then the claimant is entitled to damages, repudiation or both
Poussard v Spiers
a warranty
Lesser/minor terms (secondary to the major purpose of the contract). In a breach the contract can continue
Claimant can only claim damages
Bettini v Gye
classification from parties
Just because a term is classified/specified by the parties does not mean the court will agree
Schuler v Wickman Machine
innominate terms
Where terms are perhaps ambiguous and courts need to examine the contract as a whole to determine whether the term is a condition or a warranty
Court will look at the circumstances existing at the time when the contract was breached and the consequences of the breach
Hong Kong Fir Shipping v Kawasaki.
exclusion clauses
one party to a contract may seek to avoid incurring liability for certain breaches of the contract, or may specify that their liability for such a breach will be limited, usually to a certain amount in damages.
common law controls on exclusion clauses
By signature
Reasonable notice
Previous course of dealing
by signature
if a document is signed at the time of making the contract, its contents become terms of that contract, regardless of whether they have been read or understood
L’Estrange v Graucob
This rule does not apply where there is any misrepresentation as to the nature of the document - Curtis v Chemical Cleaning
