Contents Of A Contract Flashcards
What is an express term and an implied term
Express term- something which is distinctly discussed and agreed then incorporated Into the contract
Implied term- not openly considered by the parties but is read into the contract by the courts by statue and custom
What are representations of a contract
Precontractual statements intended to persuade the other party to enter into the contract
What are terms
Statements incorporated into the contract
4 ways the court distinguish between a representation and a term
Importance attached to the statement
Is it in writing?
The timing of the statement
Whether either parties had special knowledge or skills
Bannerman v white
Negotiations of hops, buyer said won’t bother to ask the price if hops contained sulphur. Seller said it didn’t. Court held there would not have been a contract if the seller didn’t make his statement
Birch v paramount estates ltd
Verbal term made into the written contract.
Statement made by seller of home ‘the house will be as good as a show house’
Timing of a contract and case law
Longer the gap between statement and contract entered the likely hold the court will determine it is not intended to be a term if the contract
Routledge v McKay
Special skills and knowledge and caselaw
If persons making the statement has special skills and knowledge the court will more likely consider the statement a term
Oscar chess ltd v Williams
How are express terms considered?
Court will determine what parties said it wrote when they made the contract and whether the claimant has had notice of the term
How can express terms be made terms of a contract
In a written document.
One party attempts to incorporate written terms into an oral contract
Limitation clause case example
Arcadia consulting UK Ltd v Amex BSC ltd
Case where party signs a written document containing contractual terms
L’Estrange v F Graucob
Case where terms are valid as they’re in the contract Even though signatures didn’t read the terms
Signature to written contract obtained by mistake or misrepresentation
Curtis v Chemical cleaning and Duing co
How can written terms be incorporated into oral contracts
Through notice
Consistent course of dealing
Common understanding by the parties
Incorporation of terms through actual notice
Okey v Marlborough Court Hotel
Reasonable notice of a term
Parker v South eastern railways company
Not whether the claimant has read the clause but that defendant has taken reasonable steps to inform the claimant
Persons bound by a term though they haven’t read it
Thompson v L M & S railways co
Documents containing terms should be expected to hold terms. Case example
Chapelton v Barry Urban District Council
More unusual the term the more notice expected to be given. Case example
J SPurling ltd v Bradshaw (RED HAND RULE!)
Consistent course of dealing case example
I SPurling ltd v Bradshaw
Common understanding between the parties case example
British crane hire corp ltd v Ipswich Plant Hire
How can a term be implied
By statute
By custom
By the court
Which two acts were replaced by consumer rights act 2015?
Sale of goods act 1979
Supply of goods and services act 1982
S9 consumer rights act
Covers satisfactory quality of goods
Case states ‘what a reasonable person would deem as unsatisfactory’
Bramhill v Edwards
S9 (3) CRA
Fit for purpose Looks as it should Free from minor defects Is safe to use Is durable
Case of goods unfit for purpose
Grant v Australian Knitting mills
law in Practice case of S9 CRA
Dalmare spa v Union maritime ltd
s10 CRA
Fit for purpose
Case to support fit for purpose
Priest v Last
Particular purpose case S 10 CRA
Griffiths v Peter Conway Ltd
S 11 (1) CRA
Goods sold by description
S 11 (2) CRA
Goods sold by sample and descriptions must eventually match those described or sampled initially
S 11 (3) CRA
Goods we physically inspect but also then rely on sellers description of the item
S 11 case example
Beale v Taylor - car bought later realised was two cars welded together
Breach of S 11 CRA
Arcis ltd v E A Ronaasen and Son
When will S 11 not be breached?
If consumer does not rely on sellers description and has their own knowledge to go off of
3 key terms implied into CRA
sec 49
Sec 50
Sec 51
Sec 52
S49 CRA (case law)
Trader will perform with reasonable care and skill
Wong Mee Wan v Kwan Kim Travel
S 50 CRA
Anything said or written to the consumer by the trader will be considered a term
S51 CRA
Implied term that the consumer must pay a fair price for the service
S 52 CRA
Implied term that trader must complete service in reasonable time
Digital goods that are free or paid for covered under which sections CRA
33 (1) and 33 (2)
Digital goods satisfactory quality
S 34 CRA
Section for digital goods for fitness for purpose
S35
Digital goods containing trial version or samples in description
S 11(2) and s36
S9 CRA business to business comparison
S14 (2) SGA
S 10 CRA business to business comparison
S 14 (3) SGA
Description of goods for business to business comparison CRA
S13 SGA
How can a term be implied by custom
Terms in use for significant amount of time
Is it reasonable to imply such term
Is the term inconsistent with express term
The term is actually used in practice
Implication of the term is acceptable by court
Term implied by custom case example
Hutton v Warren
Terms implied by the court example case
Liverpool city council v Irwin
Terms implied by court based on intentions to parties case example
Marks and Spencer v BNP
When can terms be implied by the court
If it is necessary for business efficiency
Or officious bystander rule
officious bystander rule case example
Shirlaw v Southern Foundaries
What is a condition
A term that goes to the root of the contract
What is a warranty
Term of contract which is less important
Cases which highlight difference between condition and warranty
Poussard v Spiers
Bettini v Gye
What is an intermediate or innominate term
A term which does not fit under a warranty or a conditional term
Innominate term case example
Hong Kong Fir Shipping Co Ltd v Kawasaki
