terms- types

Question 1

what is a term

Answer 1

a promise made and included in the contract
- leads to a breach of contract if not followed

Question 2

what is representation

Answer 2

a statement which induces the making of a contract
- leads to a misrepresentation

Question 3

what will the courts take into account when deciding if something is a term or representation

Answer 3

1. the importance attached to the representation
2. special knowledge or skill of the person making the statement
3. any time lag between making the statement and the contract being formed
4. whether there’s a written contract

Question 4

what is the case for when the statement is so important for the purchaser of the animal that it was taken as a term not a representation

Answer 4

coachman v hill

Question 5

what is the case for it being a private seller who believed the car to be a newer model of car then it actually was, therefore representation not term

Answer 5

Oscar chess v williams

Question 6

what is the case for if somebody has specialist knowledge when selling something, their statements are typically terms

Answer 6

dick Bentley v harold smith motors

Question 7

what is an expressed term

Answer 7

• words agreed by the parties to be incorporated in their contract
• terms can be written or verbal
  e.g price

Question 8

what is an implied term

Answer 8

• these are terms which aren’t explicitly stated in the contract but are inferred
• inferred from common law or statute
• consumer rights act 2016

Question 9

how can implied terms be inferred through common law

Answer 9

1. business efficacy test/ officious bystander test
2. custom or proie dealings between parties

Question 10

what are the 2 parts of the business efficacy test

Answer 10

1- is the term necessary to make the contract effective
2- if the parties had thought about it would they have agreed that the suggested terms was obviously going to be in the contract

Question 11

what is the officious bystander test

Answer 11

• if while the parties were making a bargain, an officious bystander had suggested something, they’d of thought ‘oh, of course’
  e.g something so obvious it goes without saying (Shirlaw v southern foundaries

Question 12

when will terms nit be implied

Answer 12

if the parties would never have agreed to it if they had thought about it (shell v Rostock garage)

Question 13

consumer rights act 2015

Question 14

what is a condition term

Answer 14

term so important that a failure to perform it would destroy the main purpose of the contract (poussard v spies)

Question 15

if a condition term is breached what does the claimant have the right to do

Answer 15

1. repudiate the contract or continue it, and/or
2. claim damages

Question 16

what is a warranty term

Answer 16

a minor term of the contract (Bettini v gye)

Question 17

if a warranty term is breached what does the claimant have the right to do

Answer 17

claim damages

Question 18

what is an innominate term

Answer 18

a term that isn’t clearly a condition or warranty
- the test is whether the party is deprived of substantially the whole benefit intended to get from the contract