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Contract Law (Yr1) > Contract - Terms > Flashcards

Contract - Terms Flashcards

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1
Q

Schawel v Reade

A

If it was the statement maker’s intention to guarantee the truth of the statement it could be deemed as a term

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2
Q

Ecay v Godfrey

A

If one party needs to question the validity of a statement made by the other party as to a term it is likely to be a representation

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3
Q

Bannerman v White

A

If particular emphasis was placed on a criteria, the other party should be aware of its importance and so it should be used as a term

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4
Q

Oscar Chess

A

If they are not an expert in their area their statements are likely representations

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5
Q

Dick Bentley Productions

A

If they are an expert in their area they have a higher onus on them to find out the truth

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6
Q

How can a term be incorporated into the contract?

A
  • Signature
  • Notice
  • Reference
  • Common dealings
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7
Q

L’Estrange v Graucob rule and exception (incl. case)

A

You are bound by what you sign EXCEPT from when it is a misrepresentation (Curtis Chemical Cleaning)

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8
Q

Grogan v Robin (Signature)

A

The document you sign must be a contractual document

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9
Q

Notice

A

Parties should be given notice as to when a term is incorporated into a contract and the term must appear in the contractual document

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10
Q

Notice cases (2 cases)

A
  • Parker v Southeastern Railway
  • Chapelton v Barry
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10
Q

Olley v Marlborough Court; Thornton v Shoe Lane Parking

A

Terms cannot be incorporated into the contract after it has been made

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11
Q

Impala Warehousing (reference)

A

Terms can be incorporated if it was on the contractual document for a period of time

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12
Q

Sterling Hydraulics (reference)

A

It must be clear as to where the proposed terms are in the contractual document

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13
Q

McCutcheon v David (Common dealings)

A

Previous dealings are only capable of being incorporated into contract if constructive knowledge of the term is established and the parties assent to them

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14
Q

Hollier v Rambler Motors (Common dealings)

A

A term may be incorporated into a contract by common dealings if it has been consistent across the course of the dealing

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15
Q

Thornton v Shoe Lane Parking; Interphoto Picture Library

A

The more onerous the term is, the more attention that should be brought to it

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16
Q

Interpretation - Rainy Sky

A

In determining what the parties meant by a term, think about what a reasonable person would have understood the parties to have meant

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17
Q

Can courts correct contracts? (incl. 2 cases)

A
  • The court can correct the contract (Shauler v Wickman)
  • It corrects linguistic mistakes not a bad bargain (Arnold v Britton)
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18
Q

Chartbrook Ltd - when can a court correct the contract?

A

If the term does not make sense

19
Q

How can a term be implied?

A
  • Custom
  • Law
  • Statute
  • Fact
20
Q

How can a term be implied by custom? (incl. case)

A

Hutton v Warren - if it is customary in that business sector for that to happen

21
Q

How can a term be implied by law? (incl. case)

A

Liverpool CC - matter of policy; in certain transactions this term should always be applied

22
Q

How can a term be implied by fact? (incl. case)

A

The term is so obvious it goes without saying; officious bystander test (The Moorcock)

23
Q

Braganza Duty (Braganza v BP Shipping)

A

Party must exercise a contractual discretion in good faith and not arbitrarily or capriciously

24
Q

What are the two acts which can imply a term into a contract?

A
  • Consumer Rights Act 2015 (B2C)
  • Sale of Goods Act 1979 (B2B)
25
Q

What is a trader? (incl. legislation)

A

s.2(2) CRA - a person acting for purposes relating to that person’s trade, business, craft or profession

26
Q

What is a consumer? (incl. legislation)

A

s.2(3) CRA - someone acting outside of their business, trade, craft or profession

27
Q

Which legislation implies the term that goods will correspond with the description? (2)

A
  • s.13 SGA
  • s.11 CRA
28
Q

Which legislation implies the term that goods are of a ‘merchantable quality’?

A

s.14(2) SGA

29
Q

Aswan Engineering (implied terms)

A

If you are going to use it for anything unusual you need to let the other party know what the intended purpose is for

30
Q

Ashington Piggeries (implied terms)

A

If you mention that it is going to be good for every purpose in a category then the court says it must cover everything in that category

31
Q

What do exclusion clauses do?

A

Remove or reduce the consequences of contracting parties’ liability

32
Q

Andres Bros Ltd v Singer & Co (exclusion clauses)

A

The more you try to exclude your liability the more they will read the clause against you

33
Q

Houghton v Trafalgar Insurance (exclusion clauses; incl. legislation)

A

Contra Preferentem - s.69 CRA ‘the interpretation which is most favourable to the consumer will prevail’

34
Q

Canada Steamship Lines (negligence)

A

Negligence is not covered unless specifically mentioned

35
Q

Distinction between exclusion and limitation (incl. case)

A

Ailsa Craig Fishing - the courts will be a lot less harsh on limitations than exclusion clauses

36
Q

UCTA s1

A

Definition of negligence

37
Q

UCTA s2(1)

A

cannot exclude or limit liability for death or personal injury

38
Q

UCTA s.2(2)

A

can exclude or limit liability for loss other than death or personal injury only if it is reasonable to do so (ref s.11)

39
Q

UCTA s.2(3)

A

even if a party knows about exclusion/limitation clauses regarding negligence, it is not evidence of voluntary acceptance of risk

40
Q

UCTA s.3

A

exclusion for liability for breach of contracts

41
Q

UCTA s.6 (incl. legislation)

A

exclusion of liability in contracts for the sale of goods; cannot exclude s.13, 14, 15 of SGA 1979

42
Q

UCTA s.11

A

reasonableness test; can only be used if another section refers to it

43
Q

When are unfair terms assessed? (incl. legislation)

A

At the time the contract was made (CRA s.62(7)(b))

44
Q

OFT v Abbey National

A

terms should be ‘transparent and prominent’; use of plain, intelligible language

45
Q

When is there not good faith in a contract? (incl. legislation)

A

CRA s.62(4) - if a term causes significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer

46
Q

Schedule 3 CRA (unfair terms)

A

effect of an unfair term is not binding on the consumer

Contract Law (Yr1) (9 decks)

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