Contract 4 Flashcards
Incorporation of terms
Signature -
Sign - bound.
Only if misrepresented may not apply.
Reasonable notice -
At time or before contract
Court look at -
nature of document
timing
onerous terms
legibility of exemption clause
words drawing to attention
Previous course of dealing
course of dealing on same terms and conditions
Needs to be consistency.
Classification of terms
Conditions (important)
Affirm or terminate
(Expected ready to load in charter are conditions).
Warranties (minor terms)
Only damages
Innominate
-Slight breach of condition.
Only if deprived of whole benefit have choice to terminate or affirm.
Implied terms
Common law
Custom -
well-known and binding custom of trade. (unless contradict express).
Fact -
contract unworkable without term.
Law -
e.g. employment contract health and safety
Statute -
Statute
SOGA 1979 -
Business to business
12(1) - seller has right to sell
13(1) - correspond with description
14(2) - satisfactory quality
14(2A) -reasonable person would describe as satisfactory quaint
14(3) - reasonably fit for that purpose.
All conditions.
Can reject unless -
buyer has accepted (beyond reasonable time or intimated acceptance)
- sss13 and 14 - breach so slight unreasonable to reject goods.
Strict liability.
SGSA 1982 -
contracts for service and contract that involve supply of work and materials.
2(1) - transfer, implied condition they have right to transfer property (ownership) In goods
3 - correspond with description
4(2) - in course of business, satisfactory quality
4(5) - in course of business. buyer makes known purpose and reasonably relies on skill, implied term fit for purpose.
13-
in course of business reasonable care and skill
14
course no time for performance agreed, within reasonable time.
15
price for work or service not fixed, implied term reasonable sum will be charged.
13 - 15 bit strict liability and are innominate terms.
14 and 15 in absence of contrary
CRA 2015
Business to consumer
9 - implied term of satisfactory quality
10 - seller makes known purpose, reasonably relies on skill, implied term goods will fit that purpose
11-
implied term that goods will correspond with description
17 -
seller has right to transfer ownership of goods
49 -
reasonable care and skill (term)
51
term that reasonable sum charged where price not fixed
52-
no time for performance, reasonable time.
If do not correspond consumer has;
short-term right to reject and get full refund
right to repair or replacement
right to a price reduction or final right to reject and get partial refund to reflect use.
Right to claim damages unaffected.
Unless agreed otherwise non-perishable goods 30 days rejection time.
Other rights if do not conform within six months, taken as not confirmed on delivery day.
Exception - perishable goods where can be proven they did conform.
S54 services - right to repeat performance, or reasonable care and skill (49).
52 - performance within reasonable time haas right to appropriate price reduction.
Exemption clauses
Incorporation -
Above - signature etc..
Construction -
Whether clause intended to exclude or limit liability
contra proferntum -
ambiguity
Clause construed against person relying on it.
Statutory controls
UCTA 1977 (business to business) -
Excludes D from restricting liability by reference to term (personal injury and death caused by negligence).
Or has no effect
Subjects term to reasonableness test for;
Loss or damage (by negligence) UCTA s2(2)
Breach of statutory implied terms relating to goods
UCTA ss(6) and (7).
breach of express term contained in standard written terms of person seeking to exempt liability (s3).
Must be fair and reasonable to include in contract.
All circumstances e.g.;
was risk insurable
nature of dealings.
Sch 2 guidelines -
Strength of bargaining positions
Inducement to agree
Knew or ought to have known about clause
Will apply if condition not complied with.
Court also has regard to -
resources D has.
How far open to take out insurance.
CRA 2015 -
Cannot be excluded.
Goods to be of satisfactory quality (s9), goods to be fit for purposes (s10) and goods to be as described (s11).
Would not be binding -
if excludes
makes a right onerous
allows trader to put person at disadvantage for pursuing remedy
exclude rules of evidence or procedure.
Cannot restrict in service contract s49 - reasonable care and skill.
Trader cannot -
exclude remedy for breaches of ss49 - 52.
make it onerous or restrictive
put person at disadvantage for pursuing
Third parties
General rule cannot protect third parties (privity of contract).
Unless named or indentified as a member of class (CRTPA 1999).
