Contract - Contractual terms

Question 1

Nissin shipping

Answer 1

General rebuttable presumption that third party has a right to enforce terms if expressly identified. BUT if there is nothing to show that this was not what the parties intended then s1(1)(b) would still apply. Still enforceable. Confirmed in Laemthong

Question 2

Moorcock

Answer 2

Implied terms are implied AS FACT to give agreements business efficacy and reasonable steps should be taken to comply even though not expressly agreed. (in this case that the jetty was deep enough to moor the boat)

Question 3

Shirlaw

Answer 3

Formulated the officious bystander test for implied terms If a bystander suggested that the term should be expressly included in the contract, what would the reaction of the parties be? - if so obvious does not need mention - then implied.

Question 4

Liverpool CC v Irwin

Answer 4

Implied terms can be as a matter of law when apply to contracts of that type generally. Regardless of officious bystander test.

Question 5

shell garage v Lostock

Answer 5

Term not implied where one party would not have agreed.

Question 6

Trollope v NWRHB

Answer 6

impied terms used sparingly, court does not re write contract

Question 7

Hutton v Warren

Answer 7

Customs will be implied into contracts made within the context of that trade (eg payments for agricultural custom when crop planted but not harvested at end of lease)

Question 8

Bettini v Gye

Answer 8

A breach of warranty - missed rehersals as sick which contract demanded he attend.

Question 9

Poussard v Spiers

Answer 9

Contrasted with Bettini Breach of condition - Missed first four performances as sick.

Question 10

Hing Kong Fir Shipping

Answer 10

Innominate terms defined as those which cannot be classified in advance. Decided according to whether the defendants have been deprived of “substantially the whole benefit” of the contract.

Question 11

Bunkorp case

Answer 11

Calling the term a condition or a warranty is not conclusive of intention but is evidence of it.

Question 12

Heilbut, Symons v Buckleton

Answer 12

Whether a statement is a representation or a term is a question of party intention. Viewed objectively

Question 13

Routledge v McKay

Answer 13

2 key points re representation v term The timing of the statement - longer period equal indication parties do not intend statement to become a term. Statements reduced to writing - will normally be terms (based on parol evidence rule)

Question 14

Bannerman v White

Answer 14

A statement is likely to be a term if the injured party only entered into the contract because it was made and the other party was aware of that fact. Importance given to statement.

Question 15

Dick Bentley Productions Oscar Chess Ltd

Answer 15

If one party possesses superior knowledge and skill of subject matter, likely to be a term. Dick was Oscar was not

Question 16

Ecay v Godfrey

Answer 16

If given the opportunity to verify (eg survey) likely to be a representation and not a term.