Terms of the Contract Flashcards
(25 cards)
statements that do form part of the contract are known as what?
the terms of the contract (legal obligations)
when are the injured party entitled to sue for damages for breach of contract?
if the terms of the contract are breached
if the pre-contractual statement does not form part of the contract it is classified as what?
a representation
what are the three types of contractual term?
-conditions
-warranties
-intermediate terms
what is a condition?
an essential term that if breached, the injured party is entitled to damages and is also entitled to get out of the contract if they want to
what is a warranty?
the only remedy available for damages for breach of contract
what is an intermediate term?
The injured party will be entitled to damages for breach of contract and may or may not be entitled to get out of the contract.
what is an exemption clause?
a clause in a contract that limits or removes a party’s liability if something goes wrong.
what does incorporation mean?
the clause becomes part of the contract
an exemption clause can be incorporated into a contract in one of three ways:
- signature
- notice
- course of dealings
If a document which contains an exemption clause has been signed, evidence of notice of the clause is what?
irrelevant
Where the document is unsigned, the exemption clause may be what?
incorporated into the contract if reasonable steps have been taken to bring it to the attention of the other party.
what are the three issues to be addressed where the document is unsigned?
i. Where is the clause contained?
ii. Was notice given in good time?
iii. Were reasonable steps taken to bring it to the other party’s attention?
Before the court will even begin to consider whether reasonable notice has been given of an exemption clause in any particular case, what is essential?
that the clause must be contained in something which can be regarded as a contractual document.
if the exemption clause was not brought to the attention of the other party before or at the time the contract was made, what cannot be done?
it cannot be incorporated into the contract
why will an exemption clause not be incorporated into an unsigned contract?
where it cannot be incorporated into the contract
is it necessary to show that the term was brought to the actual notice of the other party?
no, merely that reasonable steps were taken in the circumstances to do so.
what is the question to be asked in relation to incorporation of an exemption clause?
whether the party seeking to rely on the clause did what was reasonably sufficient to give the other party notice of the condition.
if an exemption clause contains any harsh or unusual provisions, what does the courts expect?
more effort should be made by the party seeking to rely on the clause to bring it to the attention of the other party
If parties contract with each other on a regular basis, the courts must do what?
balance the injustice of holding one party to be bound by a term which they did not read against the expectation of the other party.
if the parties contract regularly and one party issues documents which transfer the risk to the other party, they are entitled to do what?
they are entitled to assume that the other party agrees to the terms they are offering
For incorporation to occur as a result of a course of dealing or conduct the course of dealing must be what?
consistent
One or two isolated incidents will not constitute a course of dealing unless what?
both parties are of similar bargaining strength and operate on terms which are acknowledged to be common within their trade/business
Criteria for economic duress:
-illegitimate pressure constituting a ‘but for cause’
-threat to breach ctt generally regarded as illegitimate
-was there a ‘real choice/realistic alternative’?’
-presence/absence of protest may be relevant but its absence will not be definitive
