Contract 4 - Terms & Exemptions Flashcards
What are the 3 types of statements that can be made during negotiations?
- Mere Puffs (no legal significance) 💨
- Representations: statements of fact/law which parties don’t intend to be binding but help induce making of the contract
🙊 - Term: statements of fact parties intend to be binding ⛓️
Can a statement be both a representation and a term?
Yes
What is the difference between a representation or a clause?
- clause = parties intended to be bound: (what would a reasonable person understand to be the intention of the parties, having regard to all the circumstances?) ⛓️
- If not, could be representation or mere puff
- Where a statement is made to induce the other party to enter the contract 💝, presumption that it’s binding but can be rebutted🗣️👂⛓️
What factors should be considered to determine if a something is a representation or a term?
- Importance of the statement: injured party considered it so important, it wouldn’t have entered into the contract but for it ‼️
- Timing of Statement: if made at time of contracting, more likely to be a term 🕰️
- Reduction of Contract into Writing ✍️
- Special Knowledge/Skill of person making the Statement. 🤓
- Assumption of Responsibility 🧑🍼
What 2 types of terms are there?
- Express: statements made by parties by which they intend to be bound
- Implied: law deems they exist
What different ways are there to demonstrate an intention to be bound?
- Signed written contract ✍️
- Incorporation by notice 👉🪧
- Incorporation by Course of Dealing: 🤝
- Other ways of agreeing: in conversation or terms set out in writing and other party agrees 🗣️👂
When might a Written contract not bind?
- docs singed not intended to have any contractual effect 🎫
- clause was orally misrepresented 🤥
What is are the requirements for Incorporation by notice to bind?
👉🪧
- doc giving notice must be intended to have contractual effect 🎟️
- notice must be given before or at time of contracting 🕰️
- must clearly bring terms to other’s attention; 👉‼️
What are the requirements for ‘Incorporation by course of dealing’ to bind?
must be:
- consistent 🔁
- regular 💩
What are entire agreement clauses?
A clause providing that a particular document(s) constitutes the entire agreement
Will entire agreement clauses be effective against misrepresentation?
Unlikely
What are the 2 types of implied terms?
- Terms Implied in Fact: give effect to presumed but unexpressed intentions of the parties, asking what would the reasonable person understand the contract to mean (business efficacy, trade customs, course of dealing)
- Terms Implied in Law: by common law or by statute
What implied terms are there under SGA 1979?
🪆
S12 Title: seller has right to sell the goods
🪆✅
S13(1) Description: goods will comply with their description 📝🪆
S14(1) Satisfactory Quality: that a reasonable person would regard satisfactory 🪆⭐️
S14(3) Fit for Particular Purpose 🪆💪
S15 Bulk of Goods must Correspond with Sample 🪆📦
How are the implied SGA terms classified?
🪆
All as conditions
🪆⛓️
What is a breach of s13-15 SGA subject to?
🪆
S15A: where breach is so slight it would be
- unreasonable for buyer to reject/repudiate, 🤬
- breach is treated as breach of warranty, so only damages allowed💵
🪆🤏🙄
Who has the burden of proof that a breach of s13-15 SGA is ‘slight’?
The seller
How can a seller’s liability under SGA be excluded or restricted?
🪆
By agreement of parties, subject to UCTA 1977
🤝
What are the restrictions on SGA exclusion or restriction?
🪆
- S12 title cannot be excluded/restricted
🪆✅❌ - Others can subject to reasonableness
⚖️
Between what type of people does the SGSA relate to?
👷
- Only B2B
👷👷
What types of supplies does the SGSA relate to?
👷
- Transfer of property in goods 📦
- Hire of Goods 🏗️
- Supply of services 👨💼
What implied terms are there under SGSA for hire 🏗️ & transfer of goods📦
👷
- Title 👷✅
- Description 👷📝
- Quality 👷⭐️
- fitness👷💪
- Sample👷📦🧴
What implied terms are there under SGSA for supply of services?
👷
S13 Care and Skill: 👷🤡
S14 reasonable time 👷⚖️⏱️
S15 pay a reasonable charge 👷⚖️💵
What sort of term is S13 care and skill under SGSA classified as?
👷🤡
As an innominate term
⚛️🐈
What 3 parts are there to the CRA?
👩🦳
- Goods 👩🦳📦
- Digital Content👩🦳💻
- Services👩🦳👨💼
What implied terms are there under CRA for goods?
👩🦳📦
- Match description 👩🦳📝
- Satisfactory quality👩🦳⭐️
- Reasonably fit for purpose (which consumer makes known to trader)
👩🦳🗣️💪
What remedial options are there for consumers for contracts for goods under CRA?
👩🦳📦
- reject - 30 days 👩🦳🙅♀️
- repair/replacement: unless impossible or disproportionate; within a reasonable time 🕰️ & w/o signif inconvenience 😤 to consumer 🔧
- price reduction or final right to reject (only where 2 is not possible) 💰🤬
What implied terms are there under CRA for digital content?
👩🦳💻
- Match any description 👩🦳📝
- Satisfactory quality👩🦳⭐️
- Reasonably fit for purpose👩🦳💪
What remedial options are there for consumers for contracts for digital content under CRA?
👩🦳💻
Within 6 months:
1. repair/replacement (reasonable time 🕰️ convenience 😤) 🔧
2. Price Reduction only where consumer can’t require repair/replacement or not done so w/in a reasonable time💰
3. refund (to be paid 14 days with no fees)🤑
4. Can claim compensation for other digital assets held if no reasonable care and skill. 🤡💻🔥💰
What implied terms are there under CRA for services?
👩🦳👨💼
- Reasonable care and skill 🤡
- Provided in a reasonable time⏱️
- Reasonable price to be paid⚖️💷
What remedial options are there for consumers for contracts for services under CRA?
👩🦳👨💼
- Right to Require Repeat Performance: within reasonable time & without signif inconvenience🕰️😤 🔂
- Right to Price Reduction: only where repeat performance impossible/disproportionate or not done w/in reasonable time etc 💰
What is the 3-stage test to determine where a party can rely on an exemption clause?
- Incorporation: is it part of the contract - normal rules ✍️
- Construction: does the clause cover the alleged breach & resulting loss 🔍
- Statutory Controls: UCTA 1977 or CRA 2015 🇬🇧
What guidelines are followed to determine construction when excluding liability for negligence?
🤡
a) does clause expressly say negligence? 🧐
b) are words wide enough to cover negligence? 🙌
c) are they too wide? could head of damage be based on some ground other than negligence🤚…..🖐️
What is presumed where parties contract face to face?
Seller intended to deal with person in front of them - difficult to rebut
What are the rules on exemption clauses on UCTA for Liability for Death/PI from Negligence?
📑
void, cannot do so
☠️🤕❌
What are the rules on exemption clauses on UCTA for that can be excluded
📑
- other negligence 🤡
- Breach of Statutory Implied Terms (S13-15 SGA) 🪆
- Breach of Contract: doesn’t apply if term is in a negotiated contract 📑🔥
What is the reasonableness test under UCTA?
📑
fair & reasonable
Guidelines:
- Bargaining powers 💪
- Where customer received an inducement to agree to the term or had similar contract opportunities with other persons 💝👀
- Customer knew/ought reasonably of existence/extent of term 💡👀
- Reasonable at time to expect compliance is practicable ⚖️
- Goods manufactured, processed or adapted to special order 🪡👘
What are the rules on exemption clauses on CRA for Death/PI from Negligence:
cannot do so, not binding on customer
What are the rules on exemption clauses on CRA 👩🦳 for Breach of Statutory Implied Terms of
- Goods 📦
- Digital Content 💻
not binding
What are the rules on exemption clauses on CRA 👩🦳 for Statutory Implied Terms for services:
- attempts to entirely exclude❌: not binding;
- restrict/limit liability = not binding if prevents recovery of price paid ❌💵
- Terms other than exemption clauses: not binding if unfair ❌⚖️
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Are use of parallel/secondary contracts to avoid CRA permitted?
Generally, no
