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Cilex Contract Law L3 Chapter 4 - contents of contract > Chapter 4 - Contents of Contract > Flashcards

Chapter 4 - Contents of Contract Flashcards

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1
Q

Terms

A

Express - clearly discussed, stated & agreed
or
Implied - not expressly included in the contract but statute or by custom

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2
Q

Judicial Checklist Term or Representation

A

Timing of the statement - Routledge v McKay

Importance of the statement - Bannerman v White (1861)

Special knowledge or skill

Reduction into writing - putting statement into words - Birch v Paramount Estates

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3
Q

Bannerman v White (1861)

A

Importance of the statement

Hint: Hops

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4
Q

Birch v Paramount Estates Ltd (1956)

A

Reduction into writing

HInt: Showhouse

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5
Q

Routledge v McKay [1954]

A

Timing of the statement & circumstances at the time (time from representation to contract)

Hint: motorbike age

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6
Q

Oscar Chess Ltd v Williams [1957]

A

Special Knowledge or Skill

Hint: car age - seller no skill

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7
Q

Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd [1965]

A

Special Knowledge or Skill

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8
Q

Representations

A

TBC

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9
Q

mere (or advertising) puffs

A

TBC

Mead v Babington

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10
Q

Mead v Babington
Not carhill

A

mere (or advertising) puffs

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11
Q

Express Terms

A

Terms which are expressly agreed by the parties
Incorporated by express reference
Express terms can be:
entirely written;
entirely oral;
partly written and partly oral
Includes exclusion clauses – clauses which look to exclude or limit liability

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12
Q

Implied Terms

A

Terms which are not expressly agreed by the contracting parties
Usually parties expressly agree the terms of a contract however it is possible to overlook or omit to include key obligations
Implied terms may be incorporated into the contract to deal with the parties omissions

Terms can be implied into the contract in the following ways:

Custom/Trade Usage
Statute
Common Law

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13
Q

Exclusion clauses

A

In order for an exclusion clause to be valid it must be properly incorporated into the contract
Exclusion clauses can be incorporated in the following ways:
Signed documents
Notice
Consistent course of dealing

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14
Q

Curtis v Chemical Cleaning & Dyeing Co (1951)

A

Written Clause in Signed Document
General rule – clause will be incorporated whether or not the other party is aware of it or read it

Hint: Wedding dress - oral assurance

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15
Q

L’Estrange v Gracoub [1934]

A

Written Clause in Signed Document

General rule – clause will be incorporated whether or not the other party is aware of it or read it

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16
Q

Incorporation via Notice

A

Document must be an integral part of the contract
Document must be a type likely to contain contractual terms
Reasonable steps must have been taken to ensure that the notice was available / brought to attention of the party before entering contract

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17
Q

Thornton v Shoe Lane Parking Ltd [1971]

A

Incorporation via Notice

Hint: Car park - on notice inside - fail

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18
Q

Olley v Marlborough Court Hotel Ltd [1949]

A

Notice of terms, in room after payment

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19
Q

Parker v South Eastern Railway (1877)

A

Sufficient notice of terms
notice within cloakroom, SER not responsible for deposits > £10. tickets given on making their deposit had the same notice printed on it. SER appealed & sufficient notice given.

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20
Q

Chapelton v Barry UDC [1940]

A

Incorporation via Notice

Hint - deckchair - on back of ticket - fail

21
Q

Spurling v Bradshaw [1956] (oj)

A

Term incorporated by
Previous Course of Dealings

22
Q

Previous Course of Dealings

A

Other party may be aware of the clause as a result of previous dealings
Must be a consistent course of dealings and document must be the type expected to contain such clauses

Hollier v Rambler Motors (1972)

23
Q

Hollier v Rambler Motors (1972)

A

Not sufficient course of dealings
claimant had used defendant garage on 3-4 occasions over a five year period

24
Q

Implied Terms: Statute

A

Terms may be implied to protect certain types of contract
E.g. Consumer contracts; employment contracts; etc.
Sale of Goods Act 1979
Consumer Rights Act 2015

Most statutory implied terms are implied into the contract to protect certain types of parties from being at a disadvantage as against other parties who may be in a stronger bargaining position

25
Q

Sale of Goods Act 1979

A

B-2-B
s14(2) satisfactory quality
s14(3) fitness for purpose
s13 description

26
Q

Sale of Goods and Services Act 1982

A

B-2-B
s4 satisfactory quality / fit for purpose
s3 description
s13 reasonable care and skill
s15 reasonable price
s14 reasonable time

27
Q

Consumer Rights Act 2015

A 
B-2-C
GOODS: 
s9(2) satisfactory quality 
s10 fitness for purpose 
s11 description 
SERVICES
s49 reasonable care and skill 
s50 ...
s51 reasonable price 
s52 reasonable time
DIGITAL 
s33(1) price
s34 satisfactory quality 
s35 fitness for purpose 
s36 description
28
Q

Implied Terms: Custom

A

Terms may be implied into a contract by custom if there is evidence that under local custom they would normally be in the contract

Hutton v Warren (1836))

29
Q

Implied Terms: Trade Usage

A

Terms may be implied by trade usage where a term would routinely be part of a contract in a particular trade or business
Note: only relevant to certain types of contract e.g. commercial
“It has long been settled that…extrinsic evidence of custom and usage is admissible to annex incidents to written contracts, in matters with respect to which they are silent.”

British Crane Hire Corp Ltd v Ipswich Plant Hire

30
Q

Hutton v Warren (1836))

A

Implied Terms: Custom

Hint plant seed payment - local custom - won

31
Q

British Crane Hire Corp Ltd v Ipswich Plant Hire

A

Implied Terms: Trade Usage

Sinking crane

32
Q

Onerous Clauses

A

Onerous clauses must be drawn to the attention of the other party.
Interfoto Picture Library v Stiletto Visual Programmes Ltd (1988)

33
Q

Interfoto Picture Library v Stiletto Visual Programmes Ltd (1988)

A

Onerous clauses

Late charges -on back of receipt & not brought to attention = fail

34
Q

Implied Terms: Common Law

A

A contract may also contain terms which have been judicially implied into it

Terms implied by the courts at common law may be separated into two types:

Terms implied as a matter of fact
Terms implied as a matter of law

35
Q

Implied Terms:Matter of Law

A

Obligations which arise irrespective of the parties’ intentions or the facts of the particular case
Implied as a matter of policy
Objective Test Applies!
Term must be a ‘reasonable’ one to imply
Must be a necessary incident of the particular type of contract

Liverpool City Council v Irwin [1976]

36
Q

Liverpool City Council v Irwin [1976]

A

Implied Terms:Matter of Law

Flats - implied term to look after common areas - fail

37
Q

Implied Terms:Matter of Fact

A

Based on parties’ intentions
Implied due to parties’ omissions
Courts gives effect to the unexpressed will of the parties
But is always imputed from the presumed intentions
How do the courts determine the intentions of the parties’?
Two tests developed by the courts to ascertain the parties’ intentions:
The Business Efficacy Test
The Officious Bystander Test

38
Q

The Business Efficacy Test

A

Term must be obvious and necessary to give business efficacy to the parties’ agreement

Liverpool City Council v Irwin:
“the court must be able to say that the insertion of the terms is necessary to give…business efficacy to the contract and that if its absence had been pointed out at the time both parties…would have agreed without hesitation to its insertion.”
Lord Cross

The Moorcock (1889)

39
Q

The Officious Bystander Test

A

Something which is so obvious that it goes without saying

Shirlaw v Southern Foundries Ltd [1939]

Term is only implied if the contract would be incomplete without it
Term must be strictly necessary
Term must have been intended by both parties

40
Q

The Moorcock (1889)

A

The Business Efficacy Test

Unload ship low tide - ship would not be damage term implied and contract useless if not implied

41
Q

Shirlaw v Southern Foundries Ltd [1939]

A

The Officious Bystander Test

It goes without saying.

42
Q

Importance / Status of the Terms - what 3 ways can terms be classified

A

Terms can either be classified as:

Conditions

Warranties

Innominate Terms

43
Q

Condition

A

A major term of the contract

An obligation, the performance of which goes to the root of the contract

Breach = right to terminate the contract and claim damages

Poussard v Spiers (1876)

44
Q

Poussard v Spiers (1876)

A

Condition

Singer & understudy - condition of the contract -fail

45
Q

Warranty

A

A minor term of the contract

An obligation, the performance of which does not go to the root of the contract

Breach = claim for damages

Bettini v Gye (1876)

46
Q

Bettini v Gye (1876)

A

Warranty

rehearsal seen as a warranty not condition - not enforceable, but damages

47
Q

Innominate Term

A

An intermediate term

Term is neither a condition or warranty

Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962]

48
Q

Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962]

A

Innominate Term

seaworthy ship - look at the consequences of breach

Cilex Contract Law L3 Chapter 4 - contents of contract (2 decks)

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