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Contract Law (Yr1) > Contract - Terms > Flashcards

Contract - Terms Flashcards

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
What are the two acts which can imply a term into a contract?
- Consumer Rights Act 2015 (B2C) - Sale of Goods Act 1979 (B2B)
25
What is a trader? (incl. legislation)
s.2(2) CRA - a person acting for purposes relating to that person's trade, business, craft or profession
26
What is a consumer? (incl. legislation)
s.2(3) CRA - someone acting outside of their business, trade, craft or profession
27
Which legislation implies the term that goods will correspond with the description? (2)
- s.13 SGA - s.11 CRA
28
Which legislation implies the term that goods are of a 'merchantable quality'?
s.14(2) SGA
29
Aswan Engineering (implied terms)
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
Ashington Piggeries (implied terms)
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
What do exclusion clauses do?
Remove or reduce the consequences of contracting parties' liability
32
Andres Bros Ltd v Singer & Co (exclusion clauses)
The more you try to exclude your liability the more they will read the clause against you
33
Houghton v Trafalgar Insurance (exclusion clauses; incl. legislation)
Contra Preferentem - s.69 CRA 'the interpretation which is most favourable to the consumer will prevail'
34
Canada Steamship Lines (negligence)
Negligence is not covered unless specifically mentioned
35
Distinction between exclusion and limitation (incl. case)
Ailsa Craig Fishing - the courts will be a lot less harsh on limitations than exclusion clauses
36
UCTA s1
Definition of negligence
37
UCTA s2(1)
cannot exclude or limit liability for death or personal injury
38
UCTA s.2(2)
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
UCTA s.2(3)
even if a party knows about exclusion/limitation clauses regarding negligence, it is not evidence of voluntary acceptance of risk
40
UCTA s.3
exclusion for liability for breach of contracts
41
UCTA s.6 (incl. legislation)
exclusion of liability in contracts for the sale of goods; cannot exclude s.13, 14, 15 of SGA 1979
42
UCTA s.11
reasonableness test; can only be used if another section refers to it
43
When are unfair terms assessed? (incl. legislation)
At the time the contract was made (CRA s.62(7)(b))
44
OFT v Abbey National
terms should be 'transparent and prominent'; use of plain, intelligible language
45
When is there not good faith in a contract? (incl. legislation)
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
Schedule 3 CRA (unfair terms)
effect of an unfair term is not binding on the consumer

Contract Law (Yr1) (9 decks)

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