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FLK 1: Contract Law > Topic 3 - Terms > Flashcards

Topic 3 - Terms Flashcards

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1
Q

What are express terms in a contract?

A

Statements of fact which the parties intend to be binding.

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2
Q

What are mere puffs?

A

Statements of no legal significance.

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3
Q

What are representations?

A

Statements of fact or law which the parties do not intend to be binding but induce the making of the contract.

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4
Q

Why does the distinction between representations and terms matter?

A

It determines whether a statement results in a breach of contract or a misrepresentation.

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5
Q

True or False: A statement can be both a term and a representation.

A

True.

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6
Q

What is the objective test used by courts to determine if a statement is a term?

A

What would a reasonable person understand to be the intention of the parties.

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7
Q

What factors do courts consider to determine if a statement is a term?

A
  • The importance of the statement
  • The timing of the statement
  • The reduction of the contract into writing
  • Special knowledge of the skill of the person making the statement
  • Assumption of responsibility
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8
Q

What does the importance of the statement refer to?

A

Whether the injured party considered it so important that they would not have entered into the contract but for that statement.

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9
Q

Fill in the blank: If a statement is made at the time of contracting, it is more likely to be a _______.

A

[term of the contract]

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10
Q

What can prevent a party from relying on the incorporation of a clause through signature?

A

If it has orally misrepresented the meaning of the clause.

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11
Q

What does incorporation by notice entail?

A

One party notifying the other party of the terms.

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12
Q

What must be demonstrated for terms to be incorporated by notice?

A

Reasonable steps must be taken to bring them to the claimant’s attention.

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13
Q

What is the significance of timing in incorporating clauses into a contract?

A

Reasonable notice must be given before or at the time of contracting.

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14
Q

In Parker v South Eastern Railway Co, what was established about terms incorporated by notice?

A

Terms will form part of the contract if reasonable steps have been taken to bring them to attention.

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15
Q

What does the case of Thornton v Shoe Lane Parking illustrate about onerous terms?

A

They must be clearly brought to the other party’s attention.

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16
Q

What is a signed written contract?

A

A document where terms are set out and indicates intent to be bound.

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17
Q

What is the principle established by L’Estrange v Graucob Ltd regarding signed contracts?

A

Signing a contract shows intent to be bound by all terms, even if not read.

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18
Q

What is the effect of special knowledge or skill on statements made during negotiations?

A

It can lead to a statement being treated as a term if the party making the statement has more knowledge.

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19
Q

What was the outcome of Oscar Chess Ltd v Williams regarding the age of a car?

A

The age was deemed a representation, not a term, due to the claimant’s lack of knowledge.

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20
Q

In Dick Bentley Productions v Harold Smith, what was held regarding the mileage of the car?

A

The mileage was considered a term of the contract.

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21
Q

What happens if a vendor explicitly accepts responsibility for the soundness of an item?

A

The statement may become a term of the contract.

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22
Q

What is the difference between misrepresentation and breach of contract?

A

Misrepresentation refers to false statements not intended to be binding; breach involves failure to fulfill a binding term.

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23
Q

What is the role of assumption of responsibility in determining contract terms?

A

It can indicate that a statement is intended to be a binding term.

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24
Q

What must be given for a clause to be incorporated into a contract?

A

Reasonable notice must be given before or at the time of contracting.

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25
In Thornton v Shoe Lane Parking, when was the contract formed?
The contract was formed when the customer put his money into the machine.
26
What is the significance of the ticket in Thornton v Shoe Lane Parking?
The ticket was not binding as it was issued after the contract was formed.
27
What is required for a document giving notice to have 'contractual effect'?
The document must be intended to have 'contractual effect'.
28
What was the outcome in Chapleton v Barry UDC regarding the ticket?
The ticket was not intended to have contractual effect, thus terms on it were not binding.
29
What must be shown for incorporation by a course of dealing to operate?
The course of dealing must be consistent and regular.
30
What was the ruling in McCutcheon v David MacBrayne regarding course of dealing?
Incorporation was unsuccessful due to inconsistent past dealings.
31
What constitutes a regular course of dealing?
Frequent transactions over a consistent period.
32
What are some common ways terms can be incorporated into a contract?
* Notice * Course of dealing * Written contract * Verbal agreement
33
What are exclusion clauses?
Clauses that limit or exclude liability for breaches.
34
What is an 'entire agreement' clause?
A clause stating that a document constitutes the entire agreement between the parties.
35
Under what conditions can a term be implied into a contract?
* Implied in fact * Implied in law
36
What is the purpose of implying terms in fact?
To give effect to the presumed but unexpressed intentions of the parties.
37
What is the significance of trade customs in implied terms?
They indicate the intention of the parties to be bound by known customs.
38
What does business efficacy refer to in contract law?
Implying terms to ensure the contract achieves its intended purpose.
39
What is the role of statutory implied terms?
To impose obligations irrespective of the parties' intentions.
40
What is Section 12 of the Sale of Goods Act 1979 about?
It implies that the seller has the right to sell the goods.
41
What does Section 13(1) of the Sale of Goods Act state?
Goods must correspond with the description given in the contract.
42
What defines 'satisfactory quality' under Section 14(2)?
Goods must meet the standard a reasonable person would regard as satisfactory.
43
What checklist does Section 14(2B) provide for assessing satisfactory quality?
* Fitness for purpose * Appearance and finish * Freedom from minor defects * Safety * Durability
44
What is the implication of Section 14(3) regarding fitness for purpose?
Goods must be fit for any particular purpose made known by the buyer.
45
What is the implied term regarding fitness for purpose under Section 14(3) of the Sale of Goods Act?
The goods supplied under the contract are reasonably fit for the particular purpose made known by the buyer ## Footnote This applies unless the buyer does not rely on the seller's skill or judgment.
46
What happens if there is a breach of Section 14(3)?
It is classified as a breach of a condition by Section 14(6) ## Footnote This classification affects the remedies available to the buyer.
47
What are the two conditions implied by Section 15 when a sale is by sample?
* The bulk will correspond with the sample in quality * The goods will be free from defects not apparent on reasonable examination of the sample ## Footnote Breach of these conditions is classified as a breach of a condition by Section 15(3).
48
What does Section 15A state regarding breaches of certain sections?
If the breach is so slight that it would be unreasonable for the buyer to reject the goods, it is treated as a breach of warranty ## Footnote The burden of proof falls on the seller.
49
Under what conditions can a seller's liability under the Sale of Goods Act be excluded?
By agreement of the parties, subject to the Unfair Contract Terms Act 1977 (UCTA) ## Footnote UCTA significantly limits the ability to exclude or restrict these terms.
50
What does the Supply of Goods and Services Act 1982 govern?
Implied terms in contracts for the transfer of property in goods, hire of goods, and supply of services ## Footnote It also governs the exclusion of such implied terms.
51
What is a 'contract for the transfer of goods' under the SGSA?
A contract under which one person transfers or agrees to transfer property in goods, excluding certain types of contracts ## Footnote Exclusions include sale of goods and hire purchase agreements.
52
What are the implied terms in contracts for the supply of services under SGSA?
* Care and skill (s 13) * Time of performance (s 14) * Reasonable charge (s 15) ## Footnote These terms ensure the supplier acts reasonably.
53
What are the main components of the Consumer Rights Act 2015?
It comprises three Parts: contracts for goods, digital content, and services; regulation of unfair terms; and miscellaneous provisions ## Footnote Part I is particularly significant for contract law.
54
What are the implied rights in a consumer sale of goods under the Consumer Rights Act?
* Goods should be of satisfactory quality (s 9) * Goods should be fit for purpose (s 10) * Goods should match the description (s 11) * Seller has the right to sell the goods (s 17) ## Footnote These rights protect consumers in transactions.
55
What are the implied terms for contracts for digital content under the Consumer Rights Act?
* Digital content should be of satisfactory quality (s 34) * Digital content should be fit for purpose (s 35) * Digital content should match the description (s 36) ## Footnote Quality is judged by what a reasonable person would consider satisfactory.
56
What are the statutory rights of a consumer under a services contract?
* Service performed with reasonable care and skill (s 49) * Reasonable price if not agreed (s 51) * Service provided in a reasonable time (s 52) ## Footnote These rights ensure consumers receive fair service.
57
What remedies are available to consumers when goods are non-conforming under the Consumer Rights Act?
* Short term right to reject * Right to repair or replacement * Right to price reduction or final rejection ## Footnote These remedies provide options for consumers when goods fail to meet standards.
58
What happens if a trader breaches the implied term of the right to supply?
The consumer has the right to reject the goods (s 20) ## Footnote This right is crucial for consumer protection.
59
What is the right of a consumer if the goods are non-conforming?
The consumer has the right to reject the goods ## Footnote This is detailed in section 20.
60
What are the two remedial options available to consumers for non-conforming digital content according to section 42?
* The right to repair or replacement * The right to price reduction
61
What does section 42(9) state about digital content that does not conform to the contract?
It must be considered non-conforming if it does not comply within six months of supply.
62
What is required from the trader regarding repair or replacement of digital content as per section 43?
Repair or replacement must be done within a reasonable time and without significant inconvenience to the consumer.
63
Under what conditions can a consumer exercise the right to a price reduction for digital content?
When repair or replacement is impossible or disproportionate, or when the trader fails to repair or replace in a reasonable time.
64
According to section 45, what is the consumer entitled to regarding refunds for digital content?
The consumer is entitled to a full refund within 14 days using the same payment method.
65
What is the legal position if non-compliant digital content causes damage to a consumer's device?
The consumer is entitled to repair or a compensatory payment if damage occurs due to lack of reasonable care and skill by the trader.
66
What are the two remedial options for non-conforming services as per section 54?
* The right to require repeat performance * The right to a price reduction
67
What does section 55(2)(a) require regarding repeat performance of services?
The supplier must provide repeat performance within a reasonable time and without significant inconvenience.
68
What happens if a party breaches a condition in a contract?
The innocent party has the right to treat the contract as repudiated and sue for damages.
69
What is the difference in remedies for breaching a condition versus a warranty?
Breach of a condition allows for repudiation and damages, while breach of a warranty only allows for damages.
70
What is an innominate term?
A term that is neither a condition nor a warranty and is assessed based on the consequences of its breach.
71
What test is applied to determine if an innominate term allows for repudiation?
Does the breach deprive the innocent party of substantially the whole benefit of the contract?
72
What are the classifications of key terms implied by statute under the SGA 1979?
* Conditions (s12-15) * Innominate terms (SGSA 1982 s13)
73
What does section 15A of the SGA 1979 state regarding slight breaches?
Slight breaches may be treated as breaches of warranty, allowing only for damages.
74
How does the Consumer Rights Act 2015 differ in its approach to implied terms?
It provides specific rights to reject goods under certain circumstances.
75
What is a repudiatory breach?
A breach of a condition that allows the innocent party to treat the contract as repudiated.
76
What does 'time is of the essence' mean in a contract?
Failure to meet a timing requirement can lead to a repudiatory breach.
77
How can time become of the essence in a contract where it is not originally stipulated?
By serving a notice stating the completion date must be reasonable.

FLK 1: Contract Law (10 decks)

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