Classification Of Terms Ao3 Flashcards
Classification of terms:
Unfair but justice? : point + case
Some terms can be classified as conditions - any breach will be repudiatory as illustrated by Poussard v Spiers.
Creates justice, but may be unfair at the same time
Classification of terms:
Unfair or justice? : This can be a problem because…
A term could be classified by the parties as a condition but the actual breach could be relatively trivial and be repudiatory, the court is unable to make an actual assessment of loss.
If the innocent party assumes repudiatory breach and the court disagrees the innocent party can be in breach for wrongful repudiation.
Classification of terms:
Unfair or justice? : However/therefore
Judges can look beyond the label attached to a term and if it is the true intention of the parties that the term is not in fact a condition then it can be treated as an innominate term or warranty as in Schuler V Wickman.
Goes against FOC if all the judges are doing is giving effect to the true intention of the parties this can be justified, this could also avoid injustice in the case of Schuler.
However this approach could create uncertainty.
Classification of terms :
Certain but unfair : point
Some terms can be classified as conditions - any breach will be repudiatory as illustrated by Poussard V Spiers.
Creates justice, but may be unfair at the same time.
Classification of terms:
Certain but unfair : this can always be a problem because…
A term could be classified by the parties as a warranty but he actual breach could be relatively serious and should be repudiatory
The court is unable to make an actual assessment of loss and allow repudiation.
Classification of terms:
Certain but unfair: however/therefore
Unless a term truly goes to the root of the contract breach should not be repudiatory in the interests of fairness and the sanctity of the contract.
Most breaches are not serious enough to destroy the contract and usually damages will be an adequate remedy.
However due to the circumstantial basis on which the breach of warranty may occur it may be unfair to only be able to get damages, maybe repudiation is more in both the parties’ interests?
Classification of terms:
Certainty but against freedom of contract : point
Certain terms are automatically conditions due to a statute.
Via Sale of Goods Act 1979 (SGA 1979)
This creates certainty, but goes against Freedom Of Contract.
Classification of terms:
Certainty but against freedom of contract : can be a problem because…
Be rigid and inflexible due to the nature of statute law being slow and difficult to change and develop.
As a result some injustice could be caused due to the rigidity of statute law, which also goes against FOC by not allowing the parties to decide how their own contract should work.
Classification of terms:
Certainty but against freedom of contract : however/therefore
Therefore, the law has too much intervention in certain contracts based on implied terms, as they are implied by law but not by choice
This fundamentally goes against FOC, and the principles of contract law.
