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Law First Year > Contract Law Second Term - TERMS > Flashcards

Contract Law Second Term - TERMS Flashcards

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1
Q

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?

A

doctrine of fundamental breach

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1
Q

St Albans City & District Council v International Computers Ltd

A

Insurance cover £50 mil, £100,000 (s.11(4))

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2
Q

liverpool City Council v Irwin

A

Breach of landlord duty, common ground

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2
Q

How many terms are in Sch.2(1) UTCCR?

A

17

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3
Q

Curtis v Chemical Cleaning & Dyeing Co Ltd

A

Wedding dress

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3
Q

what action of UCTA gives its scope?

A

s.2

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3
Q

What Regulation exempts certain contracts under UTCCR?

A

Reg.4(2)(a) and (b)

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4
Q

Thompson v LM & S Railway Co

A

Timetable, low threshold of notice required (had to buy etc)

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4
Q

What did Steyn say in FNB about significant imbalance under Reg.5(1)?

A

Means substantive unfairness

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5
Q

what is a criticism of Hollier v Rambler Motors?

A

not giving effect to intentions of the parties

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6
Q

when will collateral contracts/terms add to the document containing all terms?

A

if the 2 stage test is satisfied - intention, and causation (but for the collateral terms, would they have entered into the contract)

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7
Q

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?

A

‘judicial creativity bordering on judicial legislation’

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7
Q

What is the outcome of UTCCR?

A

Invalidates all unfair non-core terms

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7
Q

What is the main difference between OFT v Ashbourne and FNB?

A

Former found unreasonable and latter reasonable

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8
Q

L Harris (Harella) Ltd v Continental Express ltd v Burn Transit Ltd

A

No express exemption, but wide enough to cover NGL

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9
Q

what did Lord Bridge say of importance in Scally v Southern Health and Social Services Board?

A

only appropriate for ‘circumstances postulated’, giving a narrow implied term to the facts of the case only

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9
Q

parker v SE railway co

A

briefcase, can make presumptions (e.g. of literacy)

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10
Q

two cases on implication of terms by law

A

Shell (UK) Ltd v Lostock Garage Ltd, Lister v Romford Ice & Cold Storage Co Ltd

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11
Q

which case regarded the test in A-G of Belize v Belize Telecom Ltd cautiously?

A

The Reborn, considering it a reformation, not a revolution, but too much latitude to judges to choose missing term

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11
Q

what three cases show how to distinguish between terms and representations?

A

Oscar Chess Ltd v Williams; Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd; Esso Petroleum Co Ltd v Mardon

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12
Q

who said ‘standard terms of business’ for s.3 UCTA is a matter of ‘fact and degree’; something on which they ‘habitually contract’?

A

Stannard J

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13
Q

what are the two advantages of standard form contracts?

A

reduce costs and raise consistency

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13
Q

What is contra proferentum?

A

Ambiguity in a term is interpreted against the person seeking to rely on it

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14
Q

what did Parke B in Hutton v Warren say about implication of terms by custom?

A

There needs to be ‘known usage but not necessarily known to the parties’

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14
Q

Esso Petroleum Co Ltd v Mardon

A

Thoroughfare

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15
Q

What case is OFT v Ashbourne similar to?

A

FNB

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16
Q

L Schuler AG v Wickman Machine Tool Sales Ltd

A

Lord Reid’s presumption against unreasonable results

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16
Q

what schedule gives indicatively unfair list of terms in UTCCR?

A

Sch.2 UTCCR

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17
Q

Timeload Ltd v BT plc

A

Disconnect, no reason

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18
Q

when is the parole evidence rule applicable?

A

when express terms are contained in a document containing all the contract terms

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18
Q

Why was it considered unreasonable to limit liability to the cost of the seed in Finney Lock?

A

Not negotiated, fault of seller, could have got insurance and evidence others did not rely on it

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19
Q

what was the test given by Denning in Shell (UK) Ltd v Lostock Garage Ltd in reference to, and what was it?

A

implication of terms by law. (1) look to case law, (2) consider if reasonable to imply it if there is no case law

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20
Q

in what section of UCTA is the consumer defined?

A

s.12

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21
Q

What does Reg.6(2) UTCCR say about its scope?

A

Non-core terms; not fairness of definition of subject matter, nor adequacy of price/remuneration in ‘plain, intelligible language’

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22
Q

what is the limitation-exclusion distinction in interpreting terms?

A

limitation clause = presumptively valid due to important role in allocating risk; exclusion = more restrictive approach

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22
Q

What does Lord Steyn conclude about the justification for implied terms in “Contract Law: Fulfilling the Reasonable Expectations of Honest Men”?

A

Court’s view of the reasonable expectations of contracting parties

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23
Q

how are terms implied in fact?

A

based on unexpressed intention implied from factual context of contract

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24
Q

Who gave three possible justifications for implying terms?

A

Collins in “The Law of Contract”

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25
Q

what is the objective of UTCCR?

A

Consumer protection, so high standard of plainness and intelligibility required

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25
Q

Why was the term not found to be unfair in FNB?

A

Consumer was aware so no imbalance

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25
Q

What were the four main recommendations of the Law Commission’s Report on Unfair Terms in Contracts, Report No.292?

A

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

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26
Q

R & B Customs Brokes Co Ltd v UDT Ltd

A

four wheel drive

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27
Q

what does s.1(3) UCTA include?

A

liability for beach of obligations/duties arising from things done in the court of business or from occupation of business purposes

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28
Q

Canada Steamship Lines Ltd v The King

A

Rules must be followed for exemptions of negligence liability (Lord Morton)

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29
Q

What are the effects of unfairness under UTCCR?

A

Not binding (Reg.8(1)) or will continue to bind if possible without the term (Reg.8(2))

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30
Q

what is the point of UCTA?

A

To control exemption clauses, regulating liability of recognised causes of action

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30
Q

what does s.3 UCTA control?

A

exemption from Boc in consumer and standard form contracts

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30
Q

what are the three categories the list in Sch.2(1) UTCCR fall into?

A

(1) Defeating reasonable expectations e.g. (j), (2) Inadequate remedy for breach e.g. (a)&(b), and (3) unreasonable burden on consumer

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31
Q

Oscar Chess Ltd v Williams

A

Vintage car, no specialist knowledge on the behalf of D

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31
Q

What case law is there on Reg.5(1) Fairness?

A

FNB –> Steyn; substantive unfairness, Bingham; ‘fair and pen dealing’

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33
Q

what are at least three exceptions to the parole evidence rule?

A

vitiations, collateral/implied terms and rectification

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33
Q

Rainy Sky SA v Kookmin Bank

A

unambiguous language

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34
Q

When was UCTA passed?

A

1977

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35
Q

what are the two ways courts can deal with exemption clauses?

A

make them entirely ineffective or reasonable

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37
Q

what type of damages are given for breach of a representation?

A

reliance damages (backward looking)

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37
Q

What are three possible justifications Collins gives for implying terms?

A

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)

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39
Q

The Moorcock

A

test of necessity, jetty, risk could have been on either so business efficacy test insufficient

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40
Q

what two cases show the importance of the timing of a notice for terms in an unsigned doc to be incorporated?

A

olley v marlborough court ltd; thornton v shoe land parking ltd

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40
Q

what did Judge Bowsher QC say in British Fermentation Products Ltd v Compair Reavell Ltd regarding exclusion clauses?

A

they can be vital for allocating risk as well; ‘good business common sense of the contract’ as a whole

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40
Q

What is the list in Sch.2 UTCCR in practice?

A

presumptively unfair terms

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40
Q

What does s.9 give about the effect of breach in UCTA?

A

Affirmation or termination does not prevent C from relying on a clause satisfying s.11

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41
Q

what three cases show that reasonable notice of a term in an unsigned document is an objective test?

A

parker v SE railway co; thompson v LM & S railway co; j spurling ltd v bradshaw

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41
Q

Smith v Eric S Bush on difference between definition of a duty and defensive term

A

‘but for’ test - would liability arise but for the term in question?

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42
Q

who highlighted the importance of the statement is vital when distinguishing between whether it is a term or a representation?

A

Morris LJ in Oscar Chess

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43
Q

what does s.2 UCTA cover?

A

negligence liability

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43
Q

What case suggests draftsmen will separate out clauses, and this seems to be respected by courts, to avoid the entire clause being struck down?

A

Watford Electronics Ltd v Sanderson CFL Ltd

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44
Q

What needs to be established before UCTA can be used?

A

basis upon which D is liable (e.g. term, incorporated, covers event in question on proper construction?)

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44
Q

how could one distinguish between Abbey National and First National Bank for UTCCR?

A

Distinguish on due performance and breach; pay fees for breach but overdraft fees part of package

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45
Q

olley v marlborough court ltd

A

hotel room - must be given before

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45
Q

what does s.6 and s.7 of the UCTA apply to?

A

exemption from breach of implied terms in SoG, hire purchase and supply of goods

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45
Q

who says that Canada Steamship rules would need explicit overruling, not just dicta in Bromwich?

A

McKendrick

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45
Q

Judgment in Hotel Services Ltd v Hilton International Hotels (UK) Ltd?

A

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’

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46
Q

what section of UCTA controls exemption from breach of implied terms in SoG, hire purchase and supply of goods?

A

s.6 and s.7

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47
Q

What did Atiyah say about the value of a signature in “Form and Substance in Contract Law”?

A

It ‘would be greatly reduced if it could not be treated as conclusive ground of contractual liability’

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48
Q

what judge in Rainy Sky SA v Kookmin Bank suggested unambiguous language needs to be applied?

A

Lord Clarke

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49
Q

Howard Marine & Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd on s.11 and Sch.2

A

Not just limited to factors in s.11 and Sch.2 UCTA

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50
Q

Name an administrative enforcement mechanism, named as a qualifying body under Reg.12(1).

A

OFT

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51
Q

how is s.12 UCTA narrower than UTCCR?

A

exclusions in s.12(1)(c) (auctions, competitive tenders and rarely supplied goods)

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52
Q

What did Bingham say in FNB about ‘good faith’ under Reg.5(1)?

A

‘fair and open dealing’

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53
Q

What type of damages are given for breach of a term/warranty?

A

expectation damages (forward looking)

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53
Q

what type of term was at issue in the case of Curtis v Chemical Cleaning & Dyeing Co Ltd

A

a collateral term that exemption only applied to beads and sequins

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54
Q

Lovell and Christmas v Wall

A

not going beyond ‘four corners’ of the document to interpret it

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55
Q

On what directive is UTCCR based?

A

European Directive 93/13/EEC

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56
Q

How could the decision in Peninsula Business Services Ltd v Sweeney be justified?

A

D could not expect greater rights than the contract gave

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57
Q

What regulations govern fairness review under UTCCR?

A

Reg.5(1) (good faith, significant imbalance) and Reg 6.6(1) (assessment at time of conclusion)

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59
Q

A-G of Belize v Belize Telecom Ltd, Hoffman

A

restated term for implication in fact

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60
Q

Shell (UK) Ltd v Lostock Garage Ltd

A

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

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61
Q

What case shows the danger of relaxing a clause for s.11 UCTA?

A

Finney Lock; unreasonable under s.11 due to general understanding that it is not to be enforced.

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63
Q

how are terms implied by custom?

A

Custom of marker, trade or locality

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64
Q

who is the burden of proof on under Reg.5 UTCCR?

A

Person claiming it was individually negotiated

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65
Q

Hollier v Rambler Motors (in regard to regularity of dealings)

A

‘not quite one dealing a year’, over phone

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67
Q

who said ‘no contracts are made in a vacuum’?

A

Lord Wilberforce, Prenn v Simmons

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68
Q

what remains unclear after Hoffman’s statement in Bromwich?

A

which cases have been overruled

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70
Q

what is the officious bystander test?

A

so obvious it goes without saying, “Oh of course”

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71
Q

Hollier v Rambler Motors (AMC) Ltd

A

Garage fire, ‘loss howsoever arising’, only non-NGL exempted

72
Q

What does the case of Pink Floyd Music v EMI Record show about interpretation of terms?

A

In favour of contextual/purposive approach of Hoffman, rather than literal approach of Hardworth

73
Q

Office of Fair Trading v Abbey National plc and Others on ‘plain language’ under Reg.7(1) UTCCR

A

‘typical consumer who is reasonably well informed and reasonably observant and circumspect’

74
Q

The Office of Fair Trading v Abbey National plc and Others on core terms

A

unarranged overdraft fees, part of payment for ‘whole package’

75
Q

Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd

A

Bentley, dealer in position to know car history

76
Q

what are the three requirements for relying on an exclusion clause?

A

valid incorporation, effective for C’s loss and must prove reasonableness if V shows it falls within UCTA

77
Q

Lister v Romford Ice & Cold Storage Co Ltd

A

employee, reasonable competence, diligence and loyalty

78
Q

What did Phillips Products Ltd v Hayland say about exclusion?

A

Transferring liability ‘inevitably involves the exclusion of liability as far as A is concerned’

80
Q

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?

A

uses language of fault but a breach of contract does not generally depend upon fault

81
Q

what are the two possible remedies from breach of a representation?

A

rescission and reliance damages

82
Q

Peninsula Business Services Ltd v Sweeney

A

Commission payments

83
Q

Under what section of UCTA is the reasonableness test?

A

s.11

83
Q

George Mitchel (Chesterhall) Ltd v Finney Lock Seeds Ltd

A

Dutch winter white

85
Q

who said that collateral terms should form part of the main contract because they have had a ‘decisive influence’?

A

Phillimore LJ

86
Q

what section of UCTA considers business liability?

A

s.1(3)

88
Q

Investors Compensation Scheme Ltd v West Bromwich Building Society (No.1)

A

‘background may… enable the reasonable man to choose between the possible meanings’ of ambiguous words, Hoffman

88
Q

what case shows the definition of a consumer is wider than UTCCR in some ways, and what is that?

A

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

89
Q

RW Green v Cade Bros Farms

A

Sea potatoes (3 days, not practicable)

90
Q

what is the scope of UCTA?

A

contractual terms and non-contractual notices

91
Q

how does Reg.5(1) and 6(1) differ from s.11(5) UCTA?

A

Burden is not reversed

92
Q

OFT v Ashbourne

A

Gym contracts - would not anticipate events rendering use of gym impractical, minimum term of 12 months designed to take advantage

93
Q

what type of implication of a term is less stringent than in fact?

A

by law

95
Q

Pink Floyd Music v EMI Record

A

Unbundle

96
Q

What other section of UCTA is considered for reasonableness in some, but usually most cases?

A

Sch.2 (strength of bargaining positions etc.)

97
Q

what type of damages are forward looking?

A

expectation damages

97
Q

what was the test for implication in fact given by Hoffman in A-G of Belize v Belize Telecom Ltd?

A

objective according to reasonable person and business efficacy alone is insufficient

98
Q

what do the three cases Oscar Chess, Dick Bentley and Esso Petroleum have in common?

A

all show knowledge of the parties is vital

99
Q

why is it posited that Hoffman did not mean to be revolutionary in Bromwich Building Society?

A

Affirming change of Wilbeforce in Prenn v Simmons on vacuums

101
Q

what three types of terms are there?

A

collateral, express and implied

102
Q

When does fairness under Reg.7(1) UTCCR extend to core terms?

A

When they fail the requirement of plain, intelligible language

104
Q

What does s.2 control?

A

exemptions from negligence

105
Q

In what case was there found a ‘sharp distinction’ with Phillips Products Ltd v Hayland through agreement to bear liability in a particular way?

A

Thompson v T Lohan (Plant Hire); Lohan did not exclude liability to victims, only to the hirers themselves

107
Q

what are the three principal choices for future development in interpreting terms?

A

resurrect traditional, literal approach; keep law as it is; keep evolving, expanding range of materials to have regard to

107
Q

L’Estrange v F Graucob Ltd

A

Cigarette vend, brown paper

108
Q

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?

A

precedent value of case concerned with contract interpretation generally low due to significance of individual case

109
Q

in terms of incorporation by course of dealing and custom, what cases show the scope of regular dealings?

A

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

110
Q

McCutcheon v David MacBrayne Ltd (regularity)

A

Four occasions, but no signed risk note

111
Q

Freiburger Kommunalbauten GmbH Baugesellschaft v Hofstetter

A

National courts determine unfairness test under UTCCR

111
Q

Axa Sun Life Services plc v Campbell Martin Ltd on s.3(2)(b)

A

Alternative holiday reserved unless of a lower standard

112
Q

Anglo Continental Holidays Ltd v Typaldos Lines (London) Ltd

A

change or cancel

114
Q

what is the effect of breaching a ‘mere puff’?

A

no legal effect

115
Q

what section of UCTA caught the evading clause in Anglo Continental Holidays Ltd v Typaldos Lines (London) Ltd?

A

s.2(3)(b)

116
Q

In what Report did the Law Commission give four recommendations for UCTA and UTCCR?

A

Report on Unfair Terms in Contracts, Report No.292

118
Q

Green (RW) Ltd v Cade Bros

A

Three day time limit

120
Q

what did the case of Esso Petroleum Co Ltd v Mardon say about Oscar Chess?

A

law has moved on, so could recover damages as a term or representation

122
Q

what did Sir Edmund-Davies say in Liverpool CC v Irwin?

A

‘always necessity and not merely reasonableness’

124
Q

who suggested, against Lovell and Christmas v Wall, that context is essential for any document?

A

M Chen-Wishart in Contract Law on summer meaning one thing to a farmer and another to a student

126
Q

Cunliffe-Owen v Teather & Greenwood test for term implied by custom

A

certain, notorious, legally binding, reasonable and consistent with contract

126
Q

who dissented strongly with Hoffman’s approach in Investors Compensation Scheme Ltd v West Bromwich Building Society (No.1) to context of a term?

A

Lord Lloyd

127
Q

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?

A

s.12(1) on good title of seller and s.13(1) on goods corresponding to description given

129
Q

Motours Ltd v Euroball (West Kent) Ltd

A

Not plain language, never discussed, ‘very difficult’ to read, but 14 signed over 18 months

130
Q

Why was it important to determine if it was a term of a representation in the past?

A

a term used to signify jurisdiction for damages

131
Q

what case showed that the parole evidence rule on express terms bars external evidence?

A

Jacobs v Batvia & General Plantations Trust Ltd

133
Q

what type of damages are backward looking?

A

reliance damages

135
Q

what rules does Morton give in Canada Steamship for exemption of negligence liability?

A

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)

137
Q

what section of UCTA gives definitions of types of exemption clause?

A

s.13

137
Q

what is the definition of non-individually negotiated terms under Reg.5(2) UTCCR)

A

‘drafted in advance’ and consumer unable to negotiate therefore

139
Q

Multi-Link Leisure Developments v North Lanarkshire Council

A

poor drafting

141
Q

what is a term/warranty in a contract?

A

part of what has been promised

141
Q

What does Sch.1 UCTA do?

A

Exempts certain contracts (e.g. insurance, transfer of interest in land etc.) are exempt from s.2-4 UCTA

142
Q

what is one possible issue with the judgment The Office of Fair Trading v Abbey National plc and Other?

A

only 20% incur the charged but point is that 100% could

144
Q

what two exceptions did courts recognise to the incorporation of a signed document in L’Estrange?

A

Non est factum and induced to sign due to an MR (e.g. Curtis –> Wedding dress)

145
Q

How did Atiyah state the test in Liverpool CC v Irwin?

A

term ends to be ‘reasonably necessary having regard to the context and the price’

146
Q

what case outlines the officious bystander test?

A

Shirlaw v Southern Foundries Ltd

147
Q

in what statute is contra proferentum now incorporated?

A

Reg 7(2) UTCCR

148
Q

Who confirmed Reid’s presumption against unreasonable results and in what case?

A

Hoffman in Investors Compensation Scheme Ltd v West Bromwich Building Society (No.1)

149
Q

Director General of Fair Trading v First National Bank plc on core terms

A

Continue paying interests, not defining obligations in the ‘due performance of the contract’ so reviewable

151
Q

what case suggests that if drafting is considered poor, less likely to give words ordinary natural meaning?

A

Multi-Link Leisure Developments v North Lanarkshire Council

152
Q

who argued it is of little significance that it is unclear which cases have been overruled after Hoffman in Bromwich?

A

Mummery LJ in Midland Bank plc v Cox McQueen

154
Q

Andrew Bros (Bournemouth) Ltd v Singer and Co Ltd

A

Tried to exclude all warranties/guarantees/conditions from CL or statute

155
Q

why is the definition of a consumer under s.3 UTCCR narrower than UCTA?

A

Requires them to be a ‘natural person’

156
Q

why are collateral terms allowed to add to a document containing all the terms, per Phillimore LJ?

A

promise has had a ‘decisive influence’ so should be included

157
Q

in what case did Wilberforce say that no contracts are made in a vacuum?

A

Prenn v Simmons

158
Q

what argument did the HoL reject of Denning’s in Liverpool CC v Irwin?

A

that the test for terms implied by law is merely one of reasonableness

159
Q

Hotel Services Ltd v Hilton International Hotels (UK) Ltd

A

Robobars

160
Q

what did lord cross say in Liverpool CC v Irwin over implication of the landlord duty?

A

it satisfied in law, but not for officious bystander test (in fact), demonstrating the latter is stricter

161
Q

what are the two limitations of standard form contracts?

A

exemption clauses may be included; removing ‘freedom of contract’ because told to take it or leave it

162
Q

what two cases explore the meaning of a core term in UTCCR?

A

The Office of Fair Trading v Abbey National plc and Other; Director General of Fair Trading v First National Bank plc

163
Q

what are the two key terms for implication of a term in fact?

A

business efficacy and officious bystander

165
Q

what three things need be considered to see if an unsigned document has all its terms incorporated?

A

timing of notice, objective test of reasonable person that it was a contractual document and objective test of reasonable notice

167
Q

J Spurling Ltd v Bradshaw

A

Denning, ‘red hand’, onerous clauses

169
Q

what is the definition of a business under s.14 UCTA?

A

professions and activities of any government department or local/public authority

170
Q

what was the ratio in L’Estrange v F Graucob Ltd?

A

if you sign a form containing an exemption clause you were generally bound

171
Q

Mandelssonn v Normand Ltd, Phillimore LJ on collateral terms

A

‘unjust’ to allow maker to deny the promise

172
Q

What did Finney Lock say about the powers of the courts when considering terms?

A

courts cannot re-write a claim; only uphold or invalidate it.

174
Q

What did Diplock say in Photo Production Ltd v Securicor Transport Ltd about UCTA and UTCCR?

A

reduced the need to go ‘through all kinds of gymnastic contortions to get around unfair exemption clauses’

176
Q

Watford Electronics Ltd v Sanderson CFL Ltd

A

Draftsmen separating out clauses

178
Q

what case try to distinguish between indirect and consequential loss?

A

Hotel Services Ltd v Hilton International Hotels (UK) Ltd

180
Q

what case shows that whether an unsigned document is contractual is an objective test of reasonable person?

A

chapelton v barry DC –> deck chair

181
Q

What are there three possible remedies for breach of a term/warranty?

A

expectation damages, termination for breach of a condition/innominate term and specific performance (rare)

183
Q

what case showed courts used to rely on a literal interpretation of terms and documents and not go beyond the ‘four corners’

A

Lovell and Christmas v Wall

184
Q

Smith v Eric S Bush on s.11

A

‘Impossible to draw up an exhaustive list of factors to be taken into account’

185
Q

What are the difficulties of OFT v Ashbourne and FNB?

A

Said that you would underestimate use of gym at start; may underestimate use of bank account leading to interest charges? Very hard to distinguish.

186
Q

What do s.6 and s.7 allow, unlike UTCCR?

A

That any party can benefit from them, although stronger protection is given to a consumer

188
Q

in what scenarios are business excluded/limited from exempting negligence under s.2 UCTA?

A

death/personal injury = no qualifications; other loss/damage needs to satisfy s.11 (reasonableness)

189
Q

what type of ‘old intellectual baggage’ has been discarded after UCTA (Hoffman, West Bromwich)?

A

contra proferentum to create ambiguity then apply it no longer needed

190
Q

when is a term implied by law?

A

in certain contexts governed by law, e.g. employment, insurance, tenancy etc

191
Q

Phillips Products Ltd v Hayland

A

Excavator, hirer solely responsible

192
Q

Smith v Eric S Bush & Harris v Wyre Forest DC

A

Excluding duty of care for valuation work

193
Q

how was the clause in Andrew Bros (Bournemouth) Ltd v Singer and Co Ltd interpreted narrowly?

A

only applied to implied terms (as used the word ‘implied’)

194
Q

what rule is applied to express terms?

A

parole evidence rule

195
Q

what techniques did courts use before UCTA controlled exemption clauses?

A

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

196
Q

what section of UCTA does R & B Customs Brokes Co Ltd v UDT Ltd concern?

A

s.12

197
Q

In what case did Reid give that in interpreting contracts/terms, there is a presumption against unreasonable results?

A

L Schuler AG v Wickman Machine Tool Sales Ltd

198
Q

What are the three ways a court may imply a term?

A

By custom, by law or in fact

199
Q

what are the three positives of the parole evidence rule?q

A

clarity, certainty and may help disputes

200
Q

Scally v Southern Health and Social Services Board

A

Superannuation contributions

200
Q

who said that exclusion clauses can be vital for allocating risk as well?

A

Judge Bowsher QC in British Fermentation Products Ltd v Compair Reavell Ltd

201
Q

how did M C-W criticise the judgments in Abbey National and FNB?

A

‘little scope for terms not deemed to be part of the “main subject matter” or “price or remuneration”’

202
Q

what is the parole evidence rule?

A

barring external evidence to add on to the contract

203
Q

Bank of Credit and Commerce SA v Ali

A

‘judicial creativity bordering on judicial legislation’ (Hoffman)

204
Q

British Crane Hire Corporation v Ipswich Plant Hire Ltd (regularity)

A

Parties in same trade, so derived from common practice. Marshy ground

205
Q

who said background could help ‘the reasonable man to choose between the possible meanings’, and in what case?

A

Hoffman in Investors Compensation Scheme Ltd v West Bromwich Building Society (No.1)

206
Q

Criticism of Timeload Ltd v BT plc?

A

why should courts have regard to normative ideas of reasonableness in the contract?

207
Q

what judge argued little significance unclear on cases overruled after Bromwich?

A

Mummery LJ

208
Q

what section of UCTA is mirror in Sch.2 UTCCR?

A

Restrictive conditions and defensive/duty defining conditions

210
Q

can you contract out of implications of term by law?

A

yes - sometimes (e.g. not s.12(1) nor s.13(1) SoGA)

211
Q

what case is an example of restrictive conditions under s.13 UCTA?

A

Green (RW) Ltd v Cade Bros

212
Q

chapelton v barry district council

A

deck chair (‘mere receipt’

213
Q

what regulation of UTCCR applies to non-individually negotiated terms?

A

Reg 5

214
Q

British Fermentation Products Ltd v Compair Reavell Ltd

A

Centrifugal air compressor

215
Q

what statement in particular did Hoffman make in Bromwich that has been doubted and why?

A

“almost all of the old intellectual baggage of ‘legal’ interpretation has been discarded”, but some cases too well entrenched to be overruled

216
Q

what cases showed a party trying to evade s.3 by meaning they cannot breach their duty?

A

Anglo Continental Holidays Ltd v Typaldos Lines (London) Ltd; Timeload Ltd v BT plc

217
Q

what are the court doing when they imply a term by custom?

A

protecting reasonable expectations of contracting parties in the market/trade/locality

218
Q

what is the business efficacy test for implying a term?

A

term needed for efficient business - The Moorcock (jetty)

220
Q

Who said the value of a signature would be greatly reduced if it were not a ‘conclusive ground of contractual liability’?

A

Atiyah

221
Q

thornton v shoe lane parking ltd

A

machine (denning, onerous)

222
Q

How does Sch.1 UCTA compare to UTCCR?

A

UTCCR applies to all consumer contracts, except those excluded in Reg.4(2)(a) and (b)

223
Q

Who enforces the UTCCR?

A

OFT

224
Q

Jacobs v Batvia & General Plantations Trust Ltd

A

Barring external evidence

225
Q

Under what section was the exclusion clause in Smith v Eric S Bush caught?

A

s.13(1)(b)

226
Q

Mahmud v Bank of Credit and Commerce

A

Implied term by law of ‘trust and confidence’ for contracts of employment

227
Q

Implied term by law of ‘trust and confidence’ for contracts of employment

A

Mahmud v Bank of Credit and Commerce

228
Q

What did Hoffman suggest in A-G of Belize v Belize Telecom about interpretation?

A

Incorporation of terms is the same as interpreting contracts

229
Q

What test did Hoffman replace in A-G of Belize?

A

Officious bystander (Shirlaw) with the man on the Clapham omnibus

230
Q

What is a philosophical positive of Hoffman in ICM v West Bromwich?

A

Matches linguistic philosophy - need background to understand syntax

231
Q

What has Hoffman admitted about ICM v West Bromwich?

A

‘Sound practical intuition’ of concerns over ICM

232
Q

What did Rogers argue to support ICM v West Bromwich?

A

It is ‘inimical’ to the resolution of commercial disputes to approach the contract with a ‘finely tuned linguistic fork’

233
Q

What is the circular reasoning of interpretation of terms and contracts?

A

If you look at intention of the parties, how do you know their intention wasn’t the literal wording?

234
Q

What did the court say in Rainy Sky v Kookmin IF the contract IS ambiguous?

A

Choose meaning ‘most consistent with business common sense’

235
Q

What did Patten LJ warn in the CoA of Rainy Sky?

A

Purposive approach to business common sense risks court substituting its own commercial judgment

236
Q

What does the case of Rainy Sky show in particular about the effect of a purposive v literal approach to interpretation?

A

Has led to disagreement amongst courts - Patten LJ in CoA and Clarke in HoL on ‘unambiguous words force application’

Law First Year (24 decks)

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