Terms

Question 1

Express Terms

Answer 1

• 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. Dick Bentley Productions v Harold Smith (Motors).
• The time between making the statement and formation of the contract will play a part in incorporation. 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

Question 2

Implied terms by Fact

Answer 2

• 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 (and to sustain the agreement as a business-like arrangement) - The Moorcock
• Other ways a term can be implied by fact include:
• 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 or professional custom - Schawel v Reade
• Terms implied because of the prior conduct of the contracting parties - Hillas v Arcos

Question 3

Implied terms by law (Common law)

Answer 3

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

Question 4

Implied terms by law (Statute)

Answer 4

Consumer Rights Act 2015 (Business/Trader 2 Consumer contracts)all goods supplied should:
s.9 be of a satisfactory quality
s.10 be fit for particular purpose
S.11 goods as described
Implied terms regarding remedies
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
The implied rights with respect to the supply of services:
S.49 trader must perform the service with reasonable care and skill
S.52 service has to be performed within a reasonable time