Terms & Exclusion Clause Flashcards
(22 cards)
Remedy for term, representation and mere puff.
Terms -> repudiate + damages
Rep -> Misrep -> rescission + Damagea
Mere puff -> remedy
3 types of pre-contractual statement.
Terms. Representation. Mere puff.
Contractual Cartography Test. Case and judge.
Heilbut Symons v Buckleton.
Fletcher LJ.
5 guidelines of ctt carto test.
KTV WI.
Knowledge of party.
Time.
Verification.
Writing.
Importance of statement.
Importance of statement. Case and one liner.
Bay merman v White.
Beer brewer emphasized that the plant should not have sulphur.
Knowledge of party. Case and one liner.
Oscar Chess v Williams.
The statement made by a member of the public (non expert) to a garage owner (expert) wa held to be an opinion and not a term.
Reduced to writing considered term. Case.
Routledge v McKay.
Terms wil normally be statements incorporated in the contract.
When contract is partly written party oral, courts wil look at all relevant surrounding circumstances.
Evans & Sons v Andrea.
Courts will take into account duration between statement made and time of contract. Case.
Routledge v McKay.
If a party suggest verification, it is unlikely to be considered a term.
Ecay v Godfrey.
2 types of terms.
Expressed. Implied.
4 ways of incorporation of terms.
Signature.
Reasonable notice.
Course of dealing.
Trade practices.
Courts method in determining oral contracts. Case.
Thauke v Maurice.
Objective Interpretation.
What would a reasonable man have understood the term to be.
Parole evidence and courts reluctance to admit extrinsic evidence. Case.
Jacobs v Bataria.
The test to differentiate condition and warranty.
Factual Matrix Test.
Objectively assess the intention of the parties.
Explain one main difference between condition and warranty.
Condition - vital to contract, goes to the root
Warranty - ancillary to contract
Case for condition term.
Ponssard v Pond.
Actress employed for a whole season, but failed to turn up till 2nd week.
Case showing warranty.
Bettini v Gye.
Require to arrive 6 days in advance before rehearsal but arrived only 3 says before.
Held: only a warranty
“It’s 6 days bitch!”
Merely writing ‘condition’ doesn’t make it a condition. Case.
Schuler v Wickman.
Lord Reid.
Applies only if you know the effect and meaning. Cannot apply if it was just a label.
The classification for not a term, not a warranty.
Case. And test used.
Innominate term.
Hong Kiong Fir v Kawasaki Kisen Kaisha.
Ex Post Facto Test.
Examine consequence of breach.
Implied terms in fact. 2 test used to assess intention of parties.
Business efficacy test.
Officious Bystander test.
Explain business efficacy in one line.
Is the term absolutely necessary in order for the contract to be workable.
Yes - implied term
No - not implied term
The Moorcock.
