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Contract Law - Paper 3 > Contract terms > Flashcards

Contract terms Flashcards

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1
Q

What is a representation?

A

It is a statement of opinion.

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2
Q

What is a term?

A

Forms part of the contract.

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3
Q

What case defines representation?

A

Bisset v Wilkinson

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4
Q

What factors will the court consider to determine if an issue is a term or a representation?

A
  1. The importance attached to the representation.
  2. Weather the part relies on a skill or special knowledge.
  3. There was an agreement.
  4. The time between making the representation and the contract.
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5
Q

What cases define importance attached to the representation?

A

Couchman v Hill

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6
Q

What case defines whether a party relies on the skill or special knowledge of the party making the representation?

A

Bentley v Harold Smith Motors

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7
Q

What case defines that there was an agreement?

A

L’Estrange V Graucob

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8
Q

What case defines the time between making the representation and the contract?

A

Routledge v McKay

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9
Q

What are the two types of terms?

A

Express and implied

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10
Q

What is an express term?

A

Terms of the contract that have been specifically agreed between the parties.

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11
Q

What is an implied term?

A

Term of the contract that the law will imply.

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12
Q

What form can express or implied terms take?

A

Conditions
Warranties
Innominate terms

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13
Q

What case defines conditions?

A

Pousssard v Spiers

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14
Q

What remedies can be applied for conditions?

A

Person affected can end the contract or seek damages.

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15
Q

What is a warranty?

A

A minor term of the contract.

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16
Q

What case defines warranties?

A

Bettini v Gye

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17
Q

What remedies can be applied for warranties?

A

Only compensation and the contract will continue.

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18
Q

What is an innominate term?

A

Where you can’t determine if it is a conditon and warranties the court will look at the consequence of the breach and then decide.

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19
Q

What case defines an innominate term?

A

Hong Kong Fir V Kawaski Kaisha kasan

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20
Q

What are the three ways a term can be implied into the contract?

A
  1. Terms implied by fact
  2. Through customs
  3. Terms implied by statue
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21
Q

Why has Parliament introduced statutory terms which must be implied into consumer contracts?

A

To balance the parties’ positions because of their unequal bargaining power.

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22
Q

What case defines when terms where implied to perserve business efficacy?

A

The Moorcock

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23
Q

What is an example of a term implied by statue?

A

Consumer Rights Act 2015

24
Q

What do mere representations do?

A

Persuade a party to enter the agreement and they’re not binding.

25
Q

What does the court determine to distinguish terms from mere representations?

A

The intention of the parties by asking what a reasonable person would consider to be the significance of the statement.

26
Q

What does the case Bettini V Gye say about warranties?

A

Breach of warranty only gives rise to a claim for damages.

27
Q

What is the purpose of the Consumer Rights Act 2015?

A

It brings together rights and remedies available to consumers when making a contract with a trader for the supply of goods or service.

28
Q

What does S.2(3) Consumer Rights Act 2015 state?

A

A consumer is an individual acting for purposes that are wholly or mainly outside of that individual’s trade, business, craft or profession.

29
Q

What does S.2(2) Consumer Rights Act 2015 state?

A

A trader is a person acting for purposes relating to that person’s trade, business, craft or profession.

30
Q

What does S.9 Consumer Rights Act 2015 state?

A

Every contract to supply goods is to be treated as including a terms that the quality of the goods is satisfactory. The goods must meet the standard that a reasonable person would consider satisfactory; taking account of the description, price and circumstances.

31
Q

When does S.9 not apply even though the goods are not of satisfactory quality?

A

If any defect has been specifically brought to the consumer’s attention before the contract is made or if the consumer has examined the goods beforehand.

32
Q

What does S.10 Consumer Rights Act 2015 state?

A

If before the contract is made the consumer makes it clear to the trader that there is a particular purpose for which the goods are to be used there is an implied term that the goods are reasonably fit for the consumer’s purpose. Obvious purposes don’t need to be made clear.

33
Q

What does S.11 Consumer Rights Act 2015 state?

A

Every contract to supply goods by description is to be treated as including a term that the goods will match the description.

34
Q

What does the case Griffiths v Peter Conway LTD say about S.10?

A

Where the consumer has a particular sensitivity that is not known to the trader, as long as the goods are fit for the normal purpose to most people, there will be no breach of S.10.

35
Q

What does S.20 Consumer Rights Act 2015 state?

A

The short term right to reject the goods must usually be exercised within 30 days of delivery of the goods, unless the trader agrees to a later date. The period will be shorter where the goods are perishable.

36
Q

What does S.23 Consumer Rights Act 2015 state?

A

If the consumer does not want to use the short term tight to reject they will have the right to insist a repair or replacement.

37
Q

What does S.24 Consumer Rights Act 2015 state?

A

If S.23 does not bring satisfaction then the consumer has the right to a price reduction or a final right to reject the goods with a full refund. Only if the trader has attempted repair or replacement within reasonable time or that option was impossible.

38
Q

What does S.49 Consumer Rights Act 2015 state?

A

Every contract to supply a service is to be treated as including a term that the trader must perform the service with reasonable care and skill.

39
Q

What does S.52 Consumer Rights Act 2015 state?

A

Every contract to supply a service is to be treated as including a term that the trade must perform the service within a reasonable time.

40
Q

What does S.55 Consumer Rights Act 2015 state?

A

The right to repeat performance requires the trader to perform the service again so it complies with the contract.

41
Q

What does S.56 Consumer Rights Act 2015 state?

A

The right to a price reduction requires the trader to reduce the price by an appropriate amount for the trader’s failure to perform the contract. Only when a repeat performance is impossible or wasn’t completed within a reasonable time

42
Q

What does S.31 Consumer Rights Act 2015 state?

A

In a contract to supply goods a trader cannot exclude liability for the goods not being of satisfactory quality, fit for purpose or as described.

43
Q

What does S.57 Consumer Rights Act 2015 state?

A

In a contract to supply services a trader cannot exclude liability for services not being performed with reasonable care and skill or within a reasonable time.

44
Q

What are exclusion clauses?

A

Exclusion clauses may be inserted into a contract in order to exclude liability for breach of contract or remedies.

45
Q

What must the exclusion clause be?

A

Incorporated into the contract.

46
Q

What does L’Estrange v Graucob say?

A

Where the parties sign the contract, the parties agree to what they sign for.

47
Q

When will the exclusion still be binding if a contract isn’t signed?

A

if the clause if set out in a contractural document.

48
Q

What does the case Hollier v Rambler Motors say?

A

An exclusion clause may be incorporated into the contract on the basis of sufficiently consistent past dealings.

49
Q

What is the contra proferentem rule?

A

Where there is ambiguity in the meaning or scope of an exclusion clause it should be interpreted against the party who seek to rely on it. Very clear words are required to exclude liability in the tort of negligence.

50
Q

What case outlines the contra proferentem rule?

A

Hollier v Rambler Motors

51
Q

What does S.65 Consumer Rights Act 2015 state?

A

Traders cannot rely on a term incorporated into a consumer contract or notice which excludes liability for death or personal injury caused by the trader’s negligence.

52
Q

What does the Unfair Contract Terms Act 1977 provide?

A

The main protection against exclusion clauses in business-to-business and consumer-to-consumer contracts by making certain clauses unenforceable and others only enforceable if they satisfy the test for reasonableness.

53
Q

What does S.2(1) Unfair Contract Terms Act 1977 state?

A

A party cannot rely on an exclusion clause that tries to exclude liability for death or personal injury caused by negligence.

54
Q

What does S.2(2) Unfair Contract Terms Act 1977 state?

A

A party can only rely on an exclusion clause that tries to exclude their liability for loss or damage if it satisfies the test for reasonableness.

55
Q

What does S.3 Unfair Contract Terms Act 1977 state?

A

A business can only rely on an exclusion clause in their written standard terms of business if the clause satisfies the test for reasonableness.

56
Q

What does S.11 Unfair Contract Terms Act 1977 state?

A

The party seeking to rely on the exclusion clause must prove that it was fair and reasonable to include it in the contract in the light of the circumstances known to the parties at the time of contracting.

57
Q

What does S.1(6) Contracts (Rights of Third Parties) Act 1999 state?

A

A third party can enforce any term which excludes liability where they are intended to benefit.

Contract Law - Paper 3 (4 decks)

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