Contract Terms Flashcards
What are express terms?
Terms written in the contract by the parties.
What are implied terms?
The parties dont write them in but the Law assumes they are part of the contract.
Give some examples of implied terms.
Sale of goods act (1979)- buyer relies on description of goods so must match that.
Consumer rights act 2015- goods must be fit for purpose
What is an exemption clause?
A term which purpots to exclude or limit liability.
They allow small firms to survive should something go wrong in the contract
What is an unfair term?
A term that is unreasonably strict or unfair.
What is required for exemption clauses and unfair terms to be enforcable?
Must be incorporated, interpreted as covering the loss claimed and complies with (unfair c’s act and consumer rights act)
How can contract terms be incorporated?
By notice
By signiature
By course of dealing or trade custom
Explain incorporation by notice
Notice must be given before contract is entered into
Terms must have been in a document intended to have contractual effect.
What is the main case for incorporation by notice?
Parker v SE Rail, lost over £10 in cloakroom.
Party will be bound by a term if party has taken reasonable steps to bring it to their attention, does not matter if they are not aware or term.
Describe incorporation by signature.
‘If a claimant signs a contract, he agrees to be bound by all the terms’
L’strange v Graucob
What notice does an unfair term require?
A greater degree of notice
What test is applied by the courts to interpret a clause?
Objective test- how would the reasonable person have understood the document given the knowledge available to the parties
What is contra proferetem?
Any benefit of ambiguity should be given to the party who did not draft the clause
What type of relation does the UCTA 1977 deal with?
Business dealing with another consumer
What type of relation does the CRA 2015 deal with?
Business dealing with consumer
What does section 2 (1) of UCTA say?
Cant exclude liability for injury/death via negligence
What does section 6 of the UCTA say?
You can exclude some implied terms, but only when reasonable to do so
What does section 3 (2) of the UCTA say?
When in breach of c, cant exclude L in respect of the breach unless it satisfies obj test.
What is the objective test for UCTA?
Must prove term is fair with the circumstances when contract was made
Guidelines for determining reasonableness under UCTA
Bargaining strength of parties
Was it brought to their attention
Was there a benefit provided if party agreed to term
What is sec 9 of the CRA?
Goods must be of a satisfactory quality
What is sec 10 of the CRA?
Goods must be fit for purpose
What is section 49 of the CRA?
Services to be performed with reasonable care and skill
Name two other effects of the CRA 2015
Renders void any term excluding L for death/injury from neg
Renders void any term unfair (unless core to the contract)
