Contract Law Second Term - TERMS Flashcards
what doctrine, the principal architect of which was Denning, was overruled as no longer needed due to UCTA in Photo Production Ltd v Securicor Transport Ltd?
doctrine of fundamental breach
St Albans City & District Council v International Computers Ltd
Insurance cover £50 mil, £100,000 (s.11(4))
liverpool City Council v Irwin
Breach of landlord duty, common ground
How many terms are in Sch.2(1) UTCCR?
17
Curtis v Chemical Cleaning & Dyeing Co Ltd
Wedding dress
what action of UCTA gives its scope?
s.2
What Regulation exempts certain contracts under UTCCR?
Reg.4(2)(a) and (b)
Thompson v LM & S Railway Co
Timetable, low threshold of notice required (had to buy etc)
What did Steyn say in FNB about significant imbalance under Reg.5(1)?
Means substantive unfairness
what is a criticism of Hollier v Rambler Motors?
not giving effect to intentions of the parties
when will collateral contracts/terms add to the document containing all terms?
if the 2 stage test is satisfied - intention, and causation (but for the collateral terms, would they have entered into the contract)
what did Hoffman say about the common law methods of controlling exemption clauses prior to UCTA in Bank of Credit and Commerce SA v Ali?
‘judicial creativity bordering on judicial legislation’
What is the outcome of UTCCR?
Invalidates all unfair non-core terms
What is the main difference between OFT v Ashbourne and FNB?
Former found unreasonable and latter reasonable
L Harris (Harella) Ltd v Continental Express ltd v Burn Transit Ltd
No express exemption, but wide enough to cover NGL
what did Lord Bridge say of importance in Scally v Southern Health and Social Services Board?
only appropriate for ‘circumstances postulated’, giving a narrow implied term to the facts of the case only
parker v SE railway co
briefcase, can make presumptions (e.g. of literacy)
two cases on implication of terms by law
Shell (UK) Ltd v Lostock Garage Ltd, Lister v Romford Ice & Cold Storage Co Ltd
which case regarded the test in A-G of Belize v Belize Telecom Ltd cautiously?
The Reborn, considering it a reformation, not a revolution, but too much latitude to judges to choose missing term
what three cases show how to distinguish between terms and representations?
Oscar Chess Ltd v Williams; Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd; Esso Petroleum Co Ltd v Mardon
who said ‘standard terms of business’ for s.3 UCTA is a matter of ‘fact and degree’; something on which they ‘habitually contract’?
Stannard J
what are the two advantages of standard form contracts?
reduce costs and raise consistency
What is contra proferentum?
Ambiguity in a term is interpreted against the person seeking to rely on it
what did Parke B in Hutton v Warren say about implication of terms by custom?
There needs to be ‘known usage but not necessarily known to the parties’
Esso Petroleum Co Ltd v Mardon
Thoroughfare
What case is OFT v Ashbourne similar to?
FNB
L Schuler AG v Wickman Machine Tool Sales Ltd
Lord Reid’s presumption against unreasonable results
what schedule gives indicatively unfair list of terms in UTCCR?
Sch.2 UTCCR
Timeload Ltd v BT plc
Disconnect, no reason
when is the parole evidence rule applicable?
when express terms are contained in a document containing all the contract terms
Why was it considered unreasonable to limit liability to the cost of the seed in Finney Lock?
Not negotiated, fault of seller, could have got insurance and evidence others did not rely on it
what was the test given by Denning in Shell (UK) Ltd v Lostock Garage Ltd in reference to, and what was it?
implication of terms by law. (1) look to case law, (2) consider if reasonable to imply it if there is no case law
in what section of UCTA is the consumer defined?
s.12
What does Reg.6(2) UTCCR say about its scope?
Non-core terms; not fairness of definition of subject matter, nor adequacy of price/remuneration in ‘plain, intelligible language’
what is the limitation-exclusion distinction in interpreting terms?
limitation clause = presumptively valid due to important role in allocating risk; exclusion = more restrictive approach
What does Lord Steyn conclude about the justification for implied terms in “Contract Law: Fulfilling the Reasonable Expectations of Honest Men”?
Court’s view of the reasonable expectations of contracting parties
how are terms implied in fact?
based on unexpressed intention implied from factual context of contract
Who gave three possible justifications for implying terms?
Collins in “The Law of Contract”
what is the objective of UTCCR?
Consumer protection, so high standard of plainness and intelligibility required
Why was the term not found to be unfair in FNB?
Consumer was aware so no imbalance
What were the four main recommendations of the Law Commission’s Report on Unfair Terms in Contracts, Report No.292?
Unified scheme replacing UCTA and UTCCR; unitary fair and reasonable test; extend consumer protection to all non-core terms, even when negotiated; extend protection to ‘micro-businesses’ where non-core non-negotiated terms are used
R & B Customs Brokes Co Ltd v UDT Ltd
four wheel drive
what does s.1(3) UCTA include?
liability for beach of obligations/duties arising from things done in the court of business or from occupation of business purposes
Canada Steamship Lines Ltd v The King
Rules must be followed for exemptions of negligence liability (Lord Morton)
What are the effects of unfairness under UTCCR?
Not binding (Reg.8(1)) or will continue to bind if possible without the term (Reg.8(2))
what is the point of UCTA?
To control exemption clauses, regulating liability of recognised causes of action
what does s.3 UCTA control?
exemption from Boc in consumer and standard form contracts
what are the three categories the list in Sch.2(1) UTCCR fall into?
(1) Defeating reasonable expectations e.g. (j), (2) Inadequate remedy for breach e.g. (a)&(b), and (3) unreasonable burden on consumer
Oscar Chess Ltd v Williams
Vintage car, no specialist knowledge on the behalf of D
What case law is there on Reg.5(1) Fairness?
FNB –> Steyn; substantive unfairness, Bingham; ‘fair and pen dealing’
what are at least three exceptions to the parole evidence rule?
vitiations, collateral/implied terms and rectification
Rainy Sky SA v Kookmin Bank
unambiguous language
When was UCTA passed?
1977
what are the two ways courts can deal with exemption clauses?
make them entirely ineffective or reasonable
what type of damages are given for breach of a representation?
reliance damages (backward looking)
What are three possible justifications Collins gives for implying terms?
To state expressly that which was silently understood, economic analysis (courts fill gaps so parties save money) and efficiency analysis (terms which would have been agreed but for costs)
The Moorcock
test of necessity, jetty, risk could have been on either so business efficacy test insufficient
what two cases show the importance of the timing of a notice for terms in an unsigned doc to be incorporated?
olley v marlborough court ltd; thornton v shoe land parking ltd
what did Judge Bowsher QC say in British Fermentation Products Ltd v Compair Reavell Ltd regarding exclusion clauses?
they can be vital for allocating risk as well; ‘good business common sense of the contract’ as a whole
What is the list in Sch.2 UTCCR in practice?
presumptively unfair terms
What does s.9 give about the effect of breach in UCTA?
Affirmation or termination does not prevent C from relying on a clause satisfying s.11
what three cases show that reasonable notice of a term in an unsigned document is an objective test?
parker v SE railway co; thompson v LM & S railway co; j spurling ltd v bradshaw
Smith v Eric S Bush on difference between definition of a duty and defensive term
‘but for’ test - would liability arise but for the term in question?
who highlighted the importance of the statement is vital when distinguishing between whether it is a term or a representation?
Morris LJ in Oscar Chess
what does s.2 UCTA cover?
negligence liability
What case suggests draftsmen will separate out clauses, and this seems to be respected by courts, to avoid the entire clause being struck down?
Watford Electronics Ltd v Sanderson CFL Ltd
What needs to be established before UCTA can be used?
basis upon which D is liable (e.g. term, incorporated, covers event in question on proper construction?)
how could one distinguish between Abbey National and First National Bank for UTCCR?
Distinguish on due performance and breach; pay fees for breach but overdraft fees part of package
olley v marlborough court ltd
hotel room - must be given before
what does s.6 and s.7 of the UCTA apply to?
exemption from breach of implied terms in SoG, hire purchase and supply of goods
who says that Canada Steamship rules would need explicit overruling, not just dicta in Bromwich?
McKendrick
Judgment in Hotel Services Ltd v Hilton International Hotels (UK) Ltd?
distinction between 1st (direct and outside exclusion) and 2nd (indirect and inside clause) limb of rule in Hadley v Baxendale; express words must be used as sizeable loss of profit is frequently ‘direct’
what section of UCTA controls exemption from breach of implied terms in SoG, hire purchase and supply of goods?
s.6 and s.7
What did Atiyah say about the value of a signature in “Form and Substance in Contract Law”?
It ‘would be greatly reduced if it could not be treated as conclusive ground of contractual liability’
what judge in Rainy Sky SA v Kookmin Bank suggested unambiguous language needs to be applied?
Lord Clarke
Howard Marine & Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd on s.11 and Sch.2
Not just limited to factors in s.11 and Sch.2 UCTA
Name an administrative enforcement mechanism, named as a qualifying body under Reg.12(1).
OFT
how is s.12 UCTA narrower than UTCCR?
exclusions in s.12(1)(c) (auctions, competitive tenders and rarely supplied goods)
What did Bingham say in FNB about ‘good faith’ under Reg.5(1)?
‘fair and open dealing’
What type of damages are given for breach of a term/warranty?
expectation damages (forward looking)
what type of term was at issue in the case of Curtis v Chemical Cleaning & Dyeing Co Ltd
a collateral term that exemption only applied to beads and sequins
Lovell and Christmas v Wall
not going beyond ‘four corners’ of the document to interpret it
On what directive is UTCCR based?
European Directive 93/13/EEC
How could the decision in Peninsula Business Services Ltd v Sweeney be justified?
D could not expect greater rights than the contract gave
What regulations govern fairness review under UTCCR?
Reg.5(1) (good faith, significant imbalance) and Reg 6.6(1) (assessment at time of conclusion)
A-G of Belize v Belize Telecom Ltd, Hoffman
restated term for implication in fact
Shell (UK) Ltd v Lostock Garage Ltd
reasonableness in CL, test by Denning MR; look to case law for case implying term, or consider if reasonable in particular category to imply it
What case shows the danger of relaxing a clause for s.11 UCTA?
Finney Lock; unreasonable under s.11 due to general understanding that it is not to be enforced.
how are terms implied by custom?
Custom of marker, trade or locality
who is the burden of proof on under Reg.5 UTCCR?
Person claiming it was individually negotiated
Hollier v Rambler Motors (in regard to regularity of dealings)
‘not quite one dealing a year’, over phone
who said ‘no contracts are made in a vacuum’?
Lord Wilberforce, Prenn v Simmons
what remains unclear after Hoffman’s statement in Bromwich?
which cases have been overruled
what is the officious bystander test?
so obvious it goes without saying, “Oh of course”
Hollier v Rambler Motors (AMC) Ltd
Garage fire, ‘loss howsoever arising’, only non-NGL exempted
What does the case of Pink Floyd Music v EMI Record show about interpretation of terms?
In favour of contextual/purposive approach of Hoffman, rather than literal approach of Hardworth
Office of Fair Trading v Abbey National plc and Others on ‘plain language’ under Reg.7(1) UTCCR
‘typical consumer who is reasonably well informed and reasonably observant and circumspect’
The Office of Fair Trading v Abbey National plc and Others on core terms
unarranged overdraft fees, part of payment for ‘whole package’
Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd
Bentley, dealer in position to know car history
what are the three requirements for relying on an exclusion clause?
valid incorporation, effective for C’s loss and must prove reasonableness if V shows it falls within UCTA
Lister v Romford Ice & Cold Storage Co Ltd
employee, reasonable competence, diligence and loyalty
What did Phillips Products Ltd v Hayland say about exclusion?
Transferring liability ‘inevitably involves the exclusion of liability as far as A is concerned’
what is the issue with Denning’s analysis in the cases of Oscar Chess Ltd v Williams and Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd?
uses language of fault but a breach of contract does not generally depend upon fault
what are the two possible remedies from breach of a representation?
rescission and reliance damages
Peninsula Business Services Ltd v Sweeney
Commission payments
Under what section of UCTA is the reasonableness test?
s.11
George Mitchel (Chesterhall) Ltd v Finney Lock Seeds Ltd
Dutch winter white
who said that collateral terms should form part of the main contract because they have had a ‘decisive influence’?
Phillimore LJ
what section of UCTA considers business liability?
s.1(3)
Investors Compensation Scheme Ltd v West Bromwich Building Society (No.1)
‘background may… enable the reasonable man to choose between the possible meanings’ of ambiguous words, Hoffman
what case shows the definition of a consumer is wider than UTCCR in some ways, and what is that?
R & B Customs Brokes Co Ltd v UDT Ltd –> Four wheel drive, business can deal as a consumer if contract is incidental, but not allowed in UTCCR
RW Green v Cade Bros Farms
Sea potatoes (3 days, not practicable)
what is the scope of UCTA?
contractual terms and non-contractual notices
how does Reg.5(1) and 6(1) differ from s.11(5) UCTA?
Burden is not reversed
OFT v Ashbourne
Gym contracts - would not anticipate events rendering use of gym impractical, minimum term of 12 months designed to take advantage
what type of implication of a term is less stringent than in fact?
by law
Pink Floyd Music v EMI Record
Unbundle
What other section of UCTA is considered for reasonableness in some, but usually most cases?
Sch.2 (strength of bargaining positions etc.)
what type of damages are forward looking?
expectation damages
what was the test for implication in fact given by Hoffman in A-G of Belize v Belize Telecom Ltd?
objective according to reasonable person and business efficacy alone is insufficient
what do the three cases Oscar Chess, Dick Bentley and Esso Petroleum have in common?
all show knowledge of the parties is vital
why is it posited that Hoffman did not mean to be revolutionary in Bromwich Building Society?
Affirming change of Wilbeforce in Prenn v Simmons on vacuums
what three types of terms are there?
collateral, express and implied
When does fairness under Reg.7(1) UTCCR extend to core terms?
When they fail the requirement of plain, intelligible language
What does s.2 control?
exemptions from negligence
In what case was there found a ‘sharp distinction’ with Phillips Products Ltd v Hayland through agreement to bear liability in a particular way?
Thompson v T Lohan (Plant Hire); Lohan did not exclude liability to victims, only to the hirers themselves
what are the three principal choices for future development in interpreting terms?
resurrect traditional, literal approach; keep law as it is; keep evolving, expanding range of materials to have regard to
L’Estrange v F Graucob Ltd
Cigarette vend, brown paper
why did Mummery LJ in Midland Bank plc v Cox McQueen say that it is of little significance that it is unclear which cases have been overruled after Hoffman in Bromwich?
precedent value of case concerned with contract interpretation generally low due to significance of individual case
in terms of incorporation by course of dealing and custom, what cases show the scope of regular dealings?
McCutcheon v David MacBrayne Ltd; Hollier v Rambler Motors; British Crane Hire Corporation v Ipswich Plant Hire Ltd; Motours Ltd v Euroball (West Kent) Ltd
McCutcheon v David MacBrayne Ltd (regularity)
Four occasions, but no signed risk note
Freiburger Kommunalbauten GmbH Baugesellschaft v Hofstetter
National courts determine unfairness test under UTCCR
Axa Sun Life Services plc v Campbell Martin Ltd on s.3(2)(b)
Alternative holiday reserved unless of a lower standard
Anglo Continental Holidays Ltd v Typaldos Lines (London) Ltd
change or cancel
what is the effect of breaching a ‘mere puff’?
no legal effect
what section of UCTA caught the evading clause in Anglo Continental Holidays Ltd v Typaldos Lines (London) Ltd?
s.2(3)(b)
In what Report did the Law Commission give four recommendations for UCTA and UTCCR?
Report on Unfair Terms in Contracts, Report No.292
Green (RW) Ltd v Cade Bros
Three day time limit
what did the case of Esso Petroleum Co Ltd v Mardon say about Oscar Chess?
law has moved on, so could recover damages as a term or representation
what did Sir Edmund-Davies say in Liverpool CC v Irwin?
‘always necessity and not merely reasonableness’
who suggested, against Lovell and Christmas v Wall, that context is essential for any document?
M Chen-Wishart in Contract Law on summer meaning one thing to a farmer and another to a student
Cunliffe-Owen v Teather & Greenwood test for term implied by custom
certain, notorious, legally binding, reasonable and consistent with contract
who dissented strongly with Hoffman’s approach in Investors Compensation Scheme Ltd v West Bromwich Building Society (No.1) to context of a term?
Lord Lloyd
what two sections of the SoGA imply terms by law into contracts, and cannot be contracted out of for consumers and only limited for consumers?
s.12(1) on good title of seller and s.13(1) on goods corresponding to description given
Motours Ltd v Euroball (West Kent) Ltd
Not plain language, never discussed, ‘very difficult’ to read, but 14 signed over 18 months
Why was it important to determine if it was a term of a representation in the past?
a term used to signify jurisdiction for damages
what case showed that the parole evidence rule on express terms bars external evidence?
Jacobs v Batvia & General Plantations Trust Ltd
what type of damages are backward looking?
reliance damages
what rules does Morton give in Canada Steamship for exemption of negligence liability?
needs to cover NGL, wide enough to cover NGL (Continental Express) and if further than NGL then only exempt from non-NGL (Hollier v Rambler)
what section of UCTA gives definitions of types of exemption clause?
s.13
what is the definition of non-individually negotiated terms under Reg.5(2) UTCCR)
‘drafted in advance’ and consumer unable to negotiate therefore
Multi-Link Leisure Developments v North Lanarkshire Council
poor drafting
what is a term/warranty in a contract?
part of what has been promised
What does Sch.1 UCTA do?
Exempts certain contracts (e.g. insurance, transfer of interest in land etc.) are exempt from s.2-4 UCTA
what is one possible issue with the judgment The Office of Fair Trading v Abbey National plc and Other?
only 20% incur the charged but point is that 100% could
what two exceptions did courts recognise to the incorporation of a signed document in L’Estrange?
Non est factum and induced to sign due to an MR (e.g. Curtis –> Wedding dress)
How did Atiyah state the test in Liverpool CC v Irwin?
term ends to be ‘reasonably necessary having regard to the context and the price’
what case outlines the officious bystander test?
Shirlaw v Southern Foundries Ltd
in what statute is contra proferentum now incorporated?
Reg 7(2) UTCCR
Who confirmed Reid’s presumption against unreasonable results and in what case?
Hoffman in Investors Compensation Scheme Ltd v West Bromwich Building Society (No.1)
Director General of Fair Trading v First National Bank plc on core terms
Continue paying interests, not defining obligations in the ‘due performance of the contract’ so reviewable
what case suggests that if drafting is considered poor, less likely to give words ordinary natural meaning?
Multi-Link Leisure Developments v North Lanarkshire Council
who argued it is of little significance that it is unclear which cases have been overruled after Hoffman in Bromwich?
Mummery LJ in Midland Bank plc v Cox McQueen
Andrew Bros (Bournemouth) Ltd v Singer and Co Ltd
Tried to exclude all warranties/guarantees/conditions from CL or statute
why is the definition of a consumer under s.3 UTCCR narrower than UCTA?
Requires them to be a ‘natural person’
why are collateral terms allowed to add to a document containing all the terms, per Phillimore LJ?
promise has had a ‘decisive influence’ so should be included
in what case did Wilberforce say that no contracts are made in a vacuum?
Prenn v Simmons
what argument did the HoL reject of Denning’s in Liverpool CC v Irwin?
that the test for terms implied by law is merely one of reasonableness
Hotel Services Ltd v Hilton International Hotels (UK) Ltd
Robobars
what did lord cross say in Liverpool CC v Irwin over implication of the landlord duty?
it satisfied in law, but not for officious bystander test (in fact), demonstrating the latter is stricter
what are the two limitations of standard form contracts?
exemption clauses may be included; removing ‘freedom of contract’ because told to take it or leave it
what two cases explore the meaning of a core term in UTCCR?
The Office of Fair Trading v Abbey National plc and Other; Director General of Fair Trading v First National Bank plc
what are the two key terms for implication of a term in fact?
business efficacy and officious bystander
what three things need be considered to see if an unsigned document has all its terms incorporated?
timing of notice, objective test of reasonable person that it was a contractual document and objective test of reasonable notice
J Spurling Ltd v Bradshaw
Denning, ‘red hand’, onerous clauses
what is the definition of a business under s.14 UCTA?
professions and activities of any government department or local/public authority
what was the ratio in L’Estrange v F Graucob Ltd?
if you sign a form containing an exemption clause you were generally bound
Mandelssonn v Normand Ltd, Phillimore LJ on collateral terms
‘unjust’ to allow maker to deny the promise
What did Finney Lock say about the powers of the courts when considering terms?
courts cannot re-write a claim; only uphold or invalidate it.
What did Diplock say in Photo Production Ltd v Securicor Transport Ltd about UCTA and UTCCR?
reduced the need to go ‘through all kinds of gymnastic contortions to get around unfair exemption clauses’
Watford Electronics Ltd v Sanderson CFL Ltd
Draftsmen separating out clauses
what case try to distinguish between indirect and consequential loss?
Hotel Services Ltd v Hilton International Hotels (UK) Ltd
what case shows that whether an unsigned document is contractual is an objective test of reasonable person?
chapelton v barry DC –> deck chair
What are there three possible remedies for breach of a term/warranty?
expectation damages, termination for breach of a condition/innominate term and specific performance (rare)
what case showed courts used to rely on a literal interpretation of terms and documents and not go beyond the ‘four corners’
Lovell and Christmas v Wall
Smith v Eric S Bush on s.11
‘Impossible to draw up an exhaustive list of factors to be taken into account’
What are the difficulties of OFT v Ashbourne and FNB?
Said that you would underestimate use of gym at start; may underestimate use of bank account leading to interest charges? Very hard to distinguish.
What do s.6 and s.7 allow, unlike UTCCR?
That any party can benefit from them, although stronger protection is given to a consumer
in what scenarios are business excluded/limited from exempting negligence under s.2 UCTA?
death/personal injury = no qualifications; other loss/damage needs to satisfy s.11 (reasonableness)
what type of ‘old intellectual baggage’ has been discarded after UCTA (Hoffman, West Bromwich)?
contra proferentum to create ambiguity then apply it no longer needed
when is a term implied by law?
in certain contexts governed by law, e.g. employment, insurance, tenancy etc
Phillips Products Ltd v Hayland
Excavator, hirer solely responsible
Smith v Eric S Bush & Harris v Wyre Forest DC
Excluding duty of care for valuation work
how was the clause in Andrew Bros (Bournemouth) Ltd v Singer and Co Ltd interpreted narrowly?
only applied to implied terms (as used the word ‘implied’)
what rule is applied to express terms?
parole evidence rule
what techniques did courts use before UCTA controlled exemption clauses?
saying it was not incorporated; interpreting it against the person relying on the clause; presumptively valid limitation clauses but more restrictive interpretation of exclusion clauses
what section of UCTA does R & B Customs Brokes Co Ltd v UDT Ltd concern?
s.12
In what case did Reid give that in interpreting contracts/terms, there is a presumption against unreasonable results?
L Schuler AG v Wickman Machine Tool Sales Ltd
What are the three ways a court may imply a term?
By custom, by law or in fact
what are the three positives of the parole evidence rule?q
clarity, certainty and may help disputes
Scally v Southern Health and Social Services Board
Superannuation contributions
who said that exclusion clauses can be vital for allocating risk as well?
Judge Bowsher QC in British Fermentation Products Ltd v Compair Reavell Ltd
how did M C-W criticise the judgments in Abbey National and FNB?
‘little scope for terms not deemed to be part of the “main subject matter” or “price or remuneration”’
what is the parole evidence rule?
barring external evidence to add on to the contract
Bank of Credit and Commerce SA v Ali
‘judicial creativity bordering on judicial legislation’ (Hoffman)
British Crane Hire Corporation v Ipswich Plant Hire Ltd (regularity)
Parties in same trade, so derived from common practice. Marshy ground
who said background could help ‘the reasonable man to choose between the possible meanings’, and in what case?
Hoffman in Investors Compensation Scheme Ltd v West Bromwich Building Society (No.1)
Criticism of Timeload Ltd v BT plc?
why should courts have regard to normative ideas of reasonableness in the contract?
what judge argued little significance unclear on cases overruled after Bromwich?
Mummery LJ
what section of UCTA is mirror in Sch.2 UTCCR?
Restrictive conditions and defensive/duty defining conditions
can you contract out of implications of term by law?
yes - sometimes (e.g. not s.12(1) nor s.13(1) SoGA)
what case is an example of restrictive conditions under s.13 UCTA?
Green (RW) Ltd v Cade Bros
chapelton v barry district council
deck chair (‘mere receipt’
what regulation of UTCCR applies to non-individually negotiated terms?
Reg 5
British Fermentation Products Ltd v Compair Reavell Ltd
Centrifugal air compressor
what statement in particular did Hoffman make in Bromwich that has been doubted and why?
“almost all of the old intellectual baggage of ‘legal’ interpretation has been discarded”, but some cases too well entrenched to be overruled
what cases showed a party trying to evade s.3 by meaning they cannot breach their duty?
Anglo Continental Holidays Ltd v Typaldos Lines (London) Ltd; Timeload Ltd v BT plc
what are the court doing when they imply a term by custom?
protecting reasonable expectations of contracting parties in the market/trade/locality
what is the business efficacy test for implying a term?
term needed for efficient business - The Moorcock (jetty)
Who said the value of a signature would be greatly reduced if it were not a ‘conclusive ground of contractual liability’?
Atiyah
thornton v shoe lane parking ltd
machine (denning, onerous)
How does Sch.1 UCTA compare to UTCCR?
UTCCR applies to all consumer contracts, except those excluded in Reg.4(2)(a) and (b)
Who enforces the UTCCR?
OFT
Jacobs v Batvia & General Plantations Trust Ltd
Barring external evidence
Under what section was the exclusion clause in Smith v Eric S Bush caught?
s.13(1)(b)
Mahmud v Bank of Credit and Commerce
Implied term by law of ‘trust and confidence’ for contracts of employment
Implied term by law of ‘trust and confidence’ for contracts of employment
Mahmud v Bank of Credit and Commerce
What did Hoffman suggest in A-G of Belize v Belize Telecom about interpretation?
Incorporation of terms is the same as interpreting contracts
What test did Hoffman replace in A-G of Belize?
Officious bystander (Shirlaw) with the man on the Clapham omnibus
What is a philosophical positive of Hoffman in ICM v West Bromwich?
Matches linguistic philosophy - need background to understand syntax
What has Hoffman admitted about ICM v West Bromwich?
‘Sound practical intuition’ of concerns over ICM
What did Rogers argue to support ICM v West Bromwich?
It is ‘inimical’ to the resolution of commercial disputes to approach the contract with a ‘finely tuned linguistic fork’
What is the circular reasoning of interpretation of terms and contracts?
If you look at intention of the parties, how do you know their intention wasn’t the literal wording?
What did the court say in Rainy Sky v Kookmin IF the contract IS ambiguous?
Choose meaning ‘most consistent with business common sense’
What did Patten LJ warn in the CoA of Rainy Sky?
Purposive approach to business common sense risks court substituting its own commercial judgment
What does the case of Rainy Sky show in particular about the effect of a purposive v literal approach to interpretation?
Has led to disagreement amongst courts - Patten LJ in CoA and Clarke in HoL on ‘unambiguous words force application’
