#CL - terms (express and implied) Flashcards
express and implied
what is an express term
what parties agree on
what is an implied term
what facts/ law put into a contract automatically
how do facts imply terms
customs traditionally put in
previous dealings = if party makes contract twice it is to remain the same unless expressly changed
what are the two tests common law has introduced fro implied terms
business efficacy test
officious bystander
business efficacy test is -
looks at whether a contract would work without it
is term needed ?
would parties have agreed to it ?
what is the officious bystander
some terms are so obvious that they do not need stating, obviously would have agreed if mentioned
what is rule for consumer consumer relationships
buyer beware ( caveat empior )
what is the laws for trader trader relationships
SOGA 1979- sale of goods act
SGSA 1982- sale of goods and services act
what are the sections to SOGA 1979
S13- as described
s14 (2)- satisfactory quality, durable, minor defects, safety
s14 (3)- fit for purpose ( including what you ask for )
what are the sections under the SGSA 1982
3Rs
S13- good care and skill
S14- Time
S-Price
what is the act that applies to consumer and traders
consumer rights act (CRA 2015)
what are the CRA rules on goods
s9- reasonable man (satisfactory)
s10-fit for purpose
s11-as described (staff/ packaging/ display)
what are the CRA rules on services
s49- reasonable care and skill
s52- reasonable time
what are the remedies under CRA
s20- refund before 30 days
s23-repaired or replaced
s24-reduction
Services
re do or a refund
what are trade puffs
adverts which are an exaggeration.clearly aren’t serious so aren’t terms of a contract
what do we look at to see whether representational statements are terms of a contract
are they important to parties
are there experts negotiating
time log between saying and making contract
is it a written contract
what are conditions
central to contract
repudiate contract if broken
what are warranties
minor terms and if they are broken you can get compensation
what are innominate terms
in-between warranties and conditions. if broken is it enough to call off the contract.
Poussard v Spiers and pond
her presence was central to contract. they could repudiate for her not attending
bettini v gye
rehearsals were not central so not condition to the contract broken
Hong Kong Fir v Kawasaki Kisen Kaisha ltd
not all contracts are as simple as as terms and warranties and are more complex.
Couchman v Hill
statement was clearly important to purchser of animal so taken as term more than representation
Oscar Chess v Williams
private seller of car believed it to be 1948 model but in-fact it was much older. just representation.
Dick Bentley v Harold Smith
misleading mileage of car was term rather then mere statement
Routledge v Mackay
it was presumed that the actual date of manufacture was not as important as a written contract.
The moorcock
implied term that the ship would be safe mooring and it would not be damaged
Schawel v Reade
implied term in the contract that the horse would be fit to stud
Hillas v Acros
option term lacked detail but still taken as term of a contract
Hutton v Warren
Local custom mean’t that farmer was enitled to allowance for seed and labour of land
Hollier v rambler motors
failure to sign document on one occasion did not prevent those terms from being enacted.
shell Uk ltd v lostock garages
argued that there was a term that shell should not unfairly discrimate against them- not term as shell would never have agreed
egan v static control components
reasonable person would think the guarantee would apply to both current and future debts
M&S v BNP securities services trust company
case which set out current court controls on implied terms.
Re moore & co and landauer & co arbitration
although total number of tins was correct, there was a breach in contract as they were packed incorrectly.
Beale v Taylor
description applies to all contracted items
Baldry v Marshall
if you make clear the purpose then it should be fit for that purpose
thake v maurice
should be of competent skill. the vasectomy was done of high standard so the claim was unsuccessful
Wilson v Best travel
s13- tour operator should not offer out rooms which could not be stayed in safely
