Contract Law: Terms of the contract Flashcards
What are Express terms?
Express terms are those terms explicitly agreed upon by the parties. They are often - but certainly not aloways - the result of a process of negotiation engaged in by the parties.
Are you bound by your signature on a contract even if you don’t read it?
Yes.
What situations allow for a signed contract to be unenforcable?
- Cooling off periods
- Non est Factum. (if a good reason exists for not reading such as blindness, or if the signatory was mistaken about the fundamental nature of the contract. Non est Factrum is ‘not my document.’
What is reasonable notice before a contract is formed?
This is the agreement of when a contract is formed and what the contract includes. This means the offerer has an obligation to let the offeree know what is included prior to contract being formed.
What is the difference between an ‘express term’ and an ‘implied term’?
An express term is written in the contract the parties agreed to. An implied term is one that is both implied by the courts and by any relevant staturoy terms.
How does a statement become an express term of a contract?
When both parties had reasonable notice of the statement before the contract was formed.
How is a term incorporated into a contract by reasonable notice?
Terms can be incorporated into a contract by referring to them and telling the other party where they can be found.
What is a clickwrap cpontract?
When a person purchases a product via a website they click on an ‘I accept’ or ‘i agree’ button which is known as a clickwrap agreement.
What is a Browsewrap agreement?
A browsewrap agreement is where a website contains a link to a set of terms that the person is asked to (but not obliged to) read.
What is a shrinkwrap contract?
A shrinkwrap contract is one that exists between a seller and a buyer where the product is sealed in shrinkwrap. (A typical example of this is software)
What are implied terms?
Implied terms are terms that were not necessarily discussed or negotiated by the parties but are nevertheless included in the contract as a result of the operation of certain legal rules.
What requirements allow the court to imply a particular term into a contract?
- If the term is reasonabe and fair
- The term is necessary to make the contract viable
- The term is so obvious that it ‘goes without saying’
- The term can be reasonably expressed
- The term is consistent with the exress terms
When will a contract be void for uncertainty?
If the parties fail to expressly include enough cler details in their agreement, it will be void for uncertainty, and unenforceable.
When will a term be implied into a contract?
When it is obvious that the parties would have included the term themselves if they had only thought about it.
What is the ‘officious bystander’ test?
If a bystander had been present during the negotiations between the parties and had asked the parties whether such a term was a term of the contract and the parties would have replied ‘yes, of course’ then the term will be implied into the contract.
