terms

Question 1

what are terms

Answer 1

Terms specify each party’s obligation under the contract

Question 2

do all contract contain terms

Answer 2

yes

Question 3

how can consideration go into a contract

Answer 3

They can be expressly agreed or implied into the contract

Question 4

what is a representation

Answer 4

a representation is a statement that may have encouraged one party to make the contract but it itself is not part of the contract

Question 5

what is the difference between a false representation and a failure to carry out a term

Answer 5

a false representation can give rise to an action for misrepresentation whereas a failure to carry out a term can give rise to an action for breach of contract

Question 6

how to know the whether the statement is a term or a representation

Answer 6

largely a question of the parties intention

Question 7

guideline to the distinction between terms and representations

Answer 7

importance of statement
timing of the statement
agreement in writing

Question 8

case example for the importance of statement

Answer 8

bannerman v white

Question 9

case example for the timing of the statement

Answer 9

routledge v mckay

Question 10

case example for the agreement in writing

Answer 10

routledge v mckay

Question 11

how can written terms be incorporated into a contract

Answer 11

by signature
by reasonable notice and
by previous course of dealing

Question 12

what does the nature of remedy for a breach of contract depend on

Answer 12

what type of term it is

Question 13

what is a condition

Answer 13

a condition is an important term that goes to the root of the contract

Question 14

what happens if there is a breach of condition

Answer 14

entitles the injured party to terminate the contract and sue for damages

Question 15

what is a warranty

Answer 15

a subsidiary term

Question 16

what happens if there is a breach of warrant

Answer 16

the injured party can sue for damages only

Question 17

case example for a breach of condition

Answer 17

Poussard v Spiers and pond

Question 18

case exmaple for a breach of warratn

Answer 18

bettini v gye

Question 19

how to distinguish between condition and warranties

Answer 19

arises out of the relatve importance attached to the terms - reflects objectively, the intention of the parties which construed by looking at the contract alone

Question 20

how can the objective intention e construed in other ways?

Answer 20

express designation - parties expressly state whether the term is a condition/warranty (schuler v wickman machine tool)
law itself may give an indication of the status of term - either by statue or by previous judicial decision (bunge corporation v tradax)

Question 21

what are innominate terms

Answer 21

where the intetnion is not clear and the clause will not obviously be a condition / warranty - remain unclassified until the seriousness of the breach can be judged

Question 22

case example of innominate terms

Answer 22

Hong Kong Fir shippin v kawasaki kisen kaisha

Question 23

what happens if the breach has substantially deprived the injured party of the benefit of the contract

Answer 23

the term will then be treated as a condition, if not then it should be treated as a warranty - the mihalis angelos

Question 24

What does the case of British Crane Hire v Ipswich plant hire explain

Answer 24

That an implied term can be a term which may be inferred from custom or trade practice

Question 25

what is terms implied by the courts as a matter of fact

Answer 25

parties intended these terms to apply and did not mention them because they were taken for granted - officious bystander test - subjective test the moorcock

Question 26

what does the case of shell v lostock say

Answer 26

court will be reluctant to find an implied term where the parties had agreed in the form of a carefully drafted written contract

Question 27

what is terms implied bu the courts as a matter of law

Answer 27

a term which may be implied by the courts, not according to the parties' intentions, but as a clear matter of law - the law is clear that the test for implying such terms is based on necessity rather than reasonableness Liverpool city council v irwin

Question 28

examples of terms that can be implied bu statue

Answer 28

sale of goods act 1979

Question 29

what are exemption caluses

Answer 29

clauses in a term in a contract which seek to exclude one party from liability or limit the extent of liability whihc would otherwise be a breach of contract

Question 30

what are the common law rules

Answer 30

rules of incorporation | rules of construction

Question 31

what are the rules of incorporation

Answer 31

1 - incorporation by signature if a person signs a document containing a clause restricting their rights they are usually held to have agreed to the restriction even if they did not read the document Léstrange v graucob 2 - incorporation by reasonable notice i) timing of notice - clause cannot be a term of the contract unles put forward before / at the time of the contract is made (thornton v shoe lane parking) ii) form of notice - clause must be put forward in a document which could be reaonsble be expected to contain contractual terms (chapelton v barry udc)

Question 32

what are rules of construction

Answer 32

the contra proferentem rule where there is ambiguity in a clause it will be construed against the party who inserted it (houghton v trafalgar insurace)

Question 33

another exemption clause is statutory intervention, given an exmaple

Answer 33

unfair contract terms act - mainly concerns with exclusion and restriction of business liability