Chapter 4 Flashcards
Terms
The parties particular obligations under the contract
Can a breach of contract occur if a term is not honoured ?
Yes
Representations
Statements of fact made by parties to one another during the course of negotiations to encourage one another to accept its terms
Can representations become terms if they become part of the contract ?
Yes
It is the formal contract that records the agreement not what is said or written during negotiations.
True
Can other documents be included in the contract ?
Yes
Conditions
Core terms of the contract. If broken, the breach strikes at the heart of the agreement so the innocent party can treat the contract as at an end, the innocent party can repudiate any further obligations owed and claim damages for any loss
Warranty
Subsidiary term which is not central to the main purpose of the contract. If a warranty is broken the innocent party may claim damages for loss but does not have a right to repudiate
In im image terms
Terms which are not definitively labeled by law or express provisions of the contract as conditions or warranties.
Express terms
Included in the contact by being explicitly stated by the parties
Who must prove the case ?
The evidential burden is usually on the claimant to show that loss or suffering was due to the defendants breach of duty
When is the burden of proof shifted
When the facts speak for themselves (res ipsa liquitor)
When the law imposes strict liability on the defendant - the defendant is automatically liable
If strict liability occurs ?
The claimant only needs to show what happened to him and in what circumstances. The defendant is assumed liable unless they can show they were not in breach
What defense can be used to escape liability ?
Volenti non fit injuria - the claimant knew the risk and voluntarily consented to it
Contributory negligence - a partial defense when the tortfeasor shows that the claimants actions or inactions contributed to the loss that was suffered
