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 is presumed where parties contract face to face?
Seller intended to deal with person in front of them - difficult to rebut
