Terms Flashcards
(35 cards)
What are the three types of pre-contractual statements?
Mere puffs: statements of no legal significance
Representations: factual statements inducing the contract, not intended to be binding
Terms: factual statements intended to be contractually binding
Why is the distinction between representations and terms important?
Because breach of a term is a breach of contract giving rise to contractual remedies (e.g. damages), while a false representation may give rise to a remedy in misrepresentation.
How do courts determine whether a statement is a representation or a term?
Using an objective test: what would a reasonable person infer about the parties’ intention based on all the circumstances?
What factors do courts consider in distinguishing terms from representations?
Importance of the statement
Timing of the statement
Whether the statement was included in the written contract
Special knowledge or skill of the speaker
Assumption of responsibility
What are the three main methods of incorporating express terms into a contract?
Signed written contract
Incorporation by notice
Incorporation by a course of dealing
What is the general rule regarding signed contracts?
A person is bound by the terms of a signed contract even if they have not read it
What are exceptions to the rule ‘bound, even though not read’?
The document was not intended to have contractual effect
Oral misrepresentation as to the term’s effect
When will terms be incorporated by notice?
If reasonable steps are taken to bring the terms to the other party’s attention before or at the time of contracting
What if the notice is particularly onerous?
Extra notice is required. The clause must be brought to the party’s attention in a way that is particularly clear or prominent
What is the rule for online contracts?
Reasonable steps must be taken to highlight the terms. Courts endorsed incorporation via checkbox and hyperlink
When will a term be incorporated through past dealings?
When the dealings have been regular and consistent
What is the effect of an entire agreement clause?
It states that the written contract is the complete agreement, excluding prior statements or oral terms.
What are the two bases for implying terms?
Implied in fact: to give effect to presumed intentions of the parties
Implied in law: imposed by law or statute regardless of parties’ intentions
When will terms be implied in fact?
Trade customs
Course of dealing
Business efficacy: where necessary to make the contract work
What are examples of terms implied at common law?
Terms necessary for common contractual relationships (e.g. landlord/tenant)
What legislation implies terms into contracts for goods and services?
Sale of Goods Act 1979 (SGA)
Supply of Goods and Services Act 1982 (SGSA)
Consumer Rights Act 2015 (CRA)
What are the key implied terms under the SGA 1979??
s12: right to sell (condition)
s13: goods match description (condition)
s14(2): satisfactory quality (condition)
s14(3): fitness for purpose (condition)
s15: match sample (condition)
mean by ‘satisfactory quality’?
Goods must meet the standard a reasonable person would consider satisfactory, considering description, price, and other relevant factors.
Can implied terms under the SGA be excluded?
s12 (title): cannot be excluded (UCTA s6(1)(a))
ss13–15: may be excluded subject to the reasonableness test under UCTA
What does the SGSA 1982 imply into service contracts?
s13: reasonable care and skill
s14: reasonable time
s15: reasonable price
What is the status of these terms under the SGSA?
s13 is treated as an innominate term (Treitel). Exclusions are subject to UCTA.
What key terms are implied into consumer contracts for goods under the CRA?
s9: satisfactory quality
s10: fitness for purpose
s11: match description
What terms are implied into contracts for digital content under the CRA?
s34: satisfactory quality
s35: fitness for purpose
s36: match description
What terms are implied into consumer service contracts?
s49: reasonable care and skill
s51: reasonable price
s52: reasonable time
s50: statements made are contractually binding if relied upon
