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Contract Law > 20-Contract Terms: General And Specific To Consumer Contracts > Flashcards

20-Contract Terms: General And Specific To Consumer Contracts Flashcards

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1
Q

What are the two KINDS of terms?

A

Express

Implied

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2
Q

3 types of term?

A

1) a condition-breach will lead to repudiation
2) a warranty-breach may lead to damages
3) an innominate term-neither a warranty or condition

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3
Q

What is a ‘condition’ regarding contract terms?

A

A term in a contract that is central to it. Breach of which may allow for repudiation.

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4
Q

A term in a contract that is central to it. Breach of which may allow for repudiation.

What is this the definition of?

A

A condition

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5
Q

What is a ‘warranty’ regarding contract terms?

A

A minor term in a contract, breach of which may lead to damages only.

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6
Q

A minor term in a contract, breach of which may lead to damages only.

What is this the definition of?

A

A warranty

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7
Q

What is an ‘innominate’ term, regarding terms in a contract?

A

A term that is neither a warranty or condition in a contract.

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8
Q

A term that is neither a warranty or condition in a contract.

What is this a definition of?

A

An innominate term

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9
Q

What is repudiation?

A

The ending of a contract by one of the parties to the contract.

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10
Q

The ending of a contract by one of the parties to the contract.

What is this the definition of?

A

Repudiation

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11
Q

What is ‘rescission’?

A

An equitable remedy where a judge decides to place parties back into their pre-contractual position.

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12
Q

An equitable remedy where a judge decides to place parties back into their pre-contractual position.

What is this the definition of?

A

Rescission

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13
Q

What case is an example of ‘conditions’ being crucial?

A

Poussard v Spiers and Pond (1876)

Facts: An actress with a lead role did not perform at all of her contracted shows. Breach of contract led to repudiation.

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14
Q

Poussard v Spiers and Pond (1876)

A

Principle: terms that are ‘conditions’ in a contract are crucial.

Facts: An actress with a lead role did not perform at all of her contracted shows. Breach of contract led to repudiation.

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15
Q

What case is demonstrates that breach of terms that are ‘warranty’ in a contract will not lead to repudiation?

A

Bettini v Gye (1876)

Facts: Singer did not attend some rehearsals, contract was ended but this was wrong and damages were awarded to the singer.

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16
Q

Bettini v Gye (1876)

A

Principle: Breach of terms that are ‘warranty’ may only lead to damages.

Facts: Singer did not attend some rehearsals, contract was ended but this was wrong and damages were awarded to the singer.

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17
Q

What case is an example of ‘innominate terms’ in a contract?

A

Hong Kong Shipping v Kawasaki KK (1962)

Facts: Ship that was chartered to Kawasaki was in need of repair and 18 weeks work was lost whilst in repair.

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18
Q

Hong Kong Shipping v Kawasaki KK (1962)

A

Example of: a case dealing with ‘innominate terms’.

Facts: Ship that was chartered to Kawasaki was in need of repair and 18 weeks work was lost whilst in repair.

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19
Q

What might a breach of term lead to?

A

Breach of contract and or potential claim for damages.

20
Q

What may misrepresentation lead to?

A

Remedy for misrepresentation. As a pose to a breach of contract.

21
Q

4 things the courts will take into account regarding whether a statement is mere representation or a term.

A

1) Importance-attached to representation
2) Special Knowledge-or skill of person making statement
3) Time lag-between negotiation and formation of contract
4) Written contract-does it exist in the contract?

22
Q

What case demonstrates the principle of ‘importance attached to the representation’?

A

Coachman v Hill (1947)

Facts: Auction catalogue describes cow as not pregnant, but cow was and died. Statement taken as term (rather than representation) due to significance.

23
Q

Coachman v Hill (1947)

A

Example of: a case demonstrating ‘the importance attached to representation’.

Facts: Auction catalogue describes cow as not pregnant, but cow was and died. Statement taken as term (rather than representation) due to significance.

24
Q

What are two contrasting cases to demonstrate the principle of ‘special knowledge’ regarding representation in contracts?

A

1) Oscar Chess v Williams (1957)
Private car seller

2) Dick Bentley v HS Motors (1965)
Pro car dealer

25
Q

What case demonstrates that according to principle of ‘special knowledge’ someone WITH special knowledges statement will more likely be taken as a term rather than representation?

A

Dick Bentley v HS Motors (1965)

Facts: Professional dealer sells car and states on 20k miles on clock when really there is 100k. Regarded as term rather than representation.

26
Q

Dick Bentley v HS Motors (1965)

A

Principle:statement maker with special knowledge is more likely to have statement regarded as term than representation.

Facts: Professional dealer sells car and states on 20k miles on clock when really there is 100k. Regarded as term rather than representation.

27
Q

What case demonstrates that according to principle of ‘special knowledge’ someone WITHOUT special knowledges statement will more likely be taken as representation rather than a contract term?

A

Oscar Chess v Williams (1957)

Facts: Private car seller believed car to be younger than it was. Statement judged to be representation rather than a contract term.

28
Q

Oscar Chess v Williams (1957)

A

Principle: someone WITHOUT special knowledge making statement will more likely be regarded as representation as a pose to a contract term.

Facts: Private car seller believed car to be younger than it was. Statement judged to be representation rather than a contract term.

29
Q

What case demonstrates the principle of ‘time lag’ regarding the things judges would consider for statements being terms or representation?

A

Routledge v Mackay (1954)

Facts: 6 days between negotiation and contract made a statement that was made but not written in contract was regarded as representation as a pose to a contact term.

30
Q

Routledge v Mackay (1954)

A

Demonstrates: a case where time lag between negotiation and formation made a statement representation as a pose to contract term.

ALSO that a term written in a contract will be considered by judges too.

Facts: 6 days between negotiation and contract made a statement that was made but not written in contract was regarded as representation as a pose to a contact term.

31
Q

What case also demonstrates that a ‘written contract’ will be considered by judges deciding whether a statement was representation or contract term?

A

Routledge v Mackay (1954)

Facts: 6 days between negotiation and contract made a statement that was made but not written in contract was regarded as representation as a pose to a contact term.

32
Q

What statues cover business to business contracts?

A

Sale of Goods Act (1979)

Sale of Goods and Services Act (1982)

33
Q

What statute covers business to consumer contracts?

A

Consumer Rights Act (2015)

34
Q

In what two ways can terms by implied by common law?

A

1) business efficacy and officious bystander test

2) Custom or prior dealings between the parties

35
Q

What are the two parts to the test of business efficacy regarding terms implied in a business contract?

A

1) is the term necessary to make contract?

2) If parties had thought of it, would they have included it?

36
Q

1) is the term necessary to make contract?
2) If parties had thought of it, would they have included it?

What is this two-part test regarding?

A

Business efficacy regarding implied terms in a business contract.

37
Q

What is a case example for business efficacy?

A

The Moorcock (1889)

Facts: Owners of wharf with Jerry where ship moored and ran aground. Both parties were aware but courts decided an implied term of contract is assured safe harbour of vessels.

38
Q

The Moorcock (1889)

A

Principle: business efficacy regarding implied terms in business contracts.

Facts: Owners of wharf with Jerry where ship moored and ran aground. Both parties were aware but courts decided an implied term of contract is assured safe harbour of vessels.

39
Q

Regarding implied terms in business contracts, what case does the ‘officious bystander’ test come from?

A

Shirlaw v Southern Foundries (1939)

40
Q

Regarding implied terms in business contracts-the officious bystander test, what case demonstrates that if parties had considered a term and wouldn’t have agreed to it then this is not an implied term?

A

Shell UK v Lostock Garage (1977)

Facts: By contract Shell supplies petrol to garage with agreement that garage would only buy from shell. When shell sold to other garages for less money, garage had to sell at loss. No implied terms because shell wouldn’t have agreed to not selling to other garages.

41
Q

Shell UK v Lostock Garages (1977)

A

Principle: officious bystander test, if terms had been considered and rejected then this is not an implied term.

Facts: By contract Shell supplies petrol to garage with agreement that garage would only buy from shell. When shell sold to other garages for less money, garage had to sell at loss. No implied terms because shell wouldn’t have agreed to not selling to other garages.

42
Q

What two contrasting cases demonstrate the officious bystander test?

A

1) Shell UK v Lostock Garage (1977)
No implied terms found

2) Egan v Static Control Components (2004)
Implied terms found

43
Q

What case demonstrates terms implied by custom regarding terms implied in business contracts?

A

Hutton v Warren (1836)

Facts: Custom meant that at end of tenant farmer lease there was an allowance for seed and labour on land.

44
Q

Hutton v Warren (1836)

A

Principle: terms implied by custom in business contacts.

Facts: Custom meant that at end of tenant farmer lease there was an allowance for seed and labour on land.

45
Q

What case is an example of terms in business contracts implied by prior dealings with the parties?

A

Hillas v Arcos (1932)

Facts: Option clause that lacked specific detail for purchase of further timber was honoured by courts to reflect previous dealings.

46
Q

Hillas v Arcos (1932)

A

Principle: terms implied in business contracts by prior dealings.

Facts: Option clause that lacked specific detail for purchase of further timber was honoured by courts to reflect previous dealings.

Contract Law (10 decks)

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