Contents of Contracts - whats in it??

Question 1

How are express terms incorporated into the contract?

Answer 1

These are terms that are intended.
For example:
a) Previous course of dealing.

b) It is actually written down

c) Reasonable notice

d) Oral statements before entering into contract.

Question 2

Implied terms - court can imply terms into the contract to make it workable and enforceable…

Answer 2

Only if it is reasonable and a reasonable man would find it necessary for there to be such a term etc.

That term may have either been forgotten by parties or subconsciously intended, just never formalised.

Question 3

When will courts imply terms that are implied by custom into the contract?

Answer 3

1. when there has been a certain standard term that the industry has been using for a long time - this will be implied into the contract as it will be assumed that they would have intended this
2. when the two parties have been dealing with eachother for a long time - court can imply terms on this reasoning following their pattern of previous contractual terms.

Question 4

Can common law lead to implied terms in a contract?

Answer 4

Yes. Used when a contract has a weaker party, such as in landlord-tenant contracts.

Question 5

What are the 5 implied terms under the Sale of Goods act?

Answer 5

a) Implied terms of title - it is presumed seller has the ownership currently.

b) Correspondence with description - goods being sold will match the description given with it.

c) satisfactory quality - assumption that goods will be sold without defects and free from any issues and in good condition

d) fitness for a particular purpose - if seller says X will be good for bricking, it better be good for bricking

e) sale by sample - the bulk should be exactly the same as the sample offered to buyer.

Question 6

What are the 3 implied terms under the SUPPLY of Goods and Services Act?

Answer 6

a) supplier must use care and skill when supplying

b) time of performance - supplier must supply in time

c) consideration - must pay supplier a reasonable price

Question 7

A problem with the condition of something goes to the (fill in) of the contract

Answer 7

Root.

It is a breach of the contract if the reason the contract was initated was based on something fundemental (aka condition) - this allows the victim party to have the contract repudiated or allow the contract to be continued.

But the breach of conditions term must be substancial in order to qualify for rejecting the goods. If the breach of the conditions term is so slight, this will be considered as a mere breach of warranty.

Question 8

A problem with warranty, does it breach the contract?

Answer 8

No. Contract will still continue. Victim party is entitled to damages only.

Question 9

What is an innominate term?

Answer 9

When it is not certain if a term is a warranty or a condition.

Test to be used to figure out:

Does the breach of term frustrate the main purpose of the contract (the beneficial aspect of the contract etc)? Aka does it deprive the victim party of a benefit.
If yes, then this was a breach of condition.

Question 10

What does a breach of the implied terms lead to?

Answer 10

Victim party can either (1) reject the goods or (2) keep and accept the goods + claim damages.

Question 11

What happens if there has been a breach of the implied terms but buyer has accepted the goods for a reasonable time and has taken no action?

Answer 11

Nothing can be done here - not even sure if you can claim damages … don;’t think so.

Question 12

When looking at remedies, we need to look at 2 things:

Answer 12

1. The consumer’s specific remedies

and

2. The remedies available for the breach of any implied terms - such as damages or repudiating the contract

Question 13

Can someone attempt to limit liability for a breach of implied terms?

Answer 13

No. Any attempt will be void.

Question 14

If there has been a breach of implied terms, what is the order of remedies you will look through? Aka, give victim the reasonable remedy

Answer 14

Top of the list»»»

Reject the goods - must be done within 30 days of purchase. OR
Replacement or repair - ignore if impossible or unreasonable. OR
Get a refund or a reduction in price

@Additionally, consumer victim can always still get damages alongside whatever option they get above@

Lower down the list»»>

Question 15

What are the remedies for a breach of implied terms when it comes to a digital content?

Answer 15

Top of the list»»»

Repair or replacement. OR
Price reduction. OR
Refund.

@Additionally, consumer victim can always still get damages alongside whatever option they get above@

Lower down the list»»>

Question 16

What are the remedies available for a breach of implied terms regarding provision of service?

Answer 16

Depends on whether it is a breach of care and skill expected (s49) ORRR a breach of contract being performed in reasonable time (s52).

For s49 breach:
+right for repeat performance and at no cost to the consumer.
+if repeat of performance is impossible, price reduction must be given within 14 days

For s52 breach:
+Price reduction wihtin 14 days.

Question 17

Can someone exclude liability for negligence resulting in death?

Answer 17

No.

Question 18

If any terms in a consumer contract is unfair on the consumer, what happens?

Answer 18

Contract is still valid - but those particular unfair terms will not be valid.

Question 19

Can any of the implied terms be limited or removed etc? CRA ss9, 10, 11, 34, 35, 36, 49, 51 and 52

Answer 19

All implied terms in business-consumer contract CANNOT BE EXCLUDED or limited in any way, also.