Contract terms-Conditions, warranties and innominate terms Flashcards
What are terms of a contract?
What the parties have agreed between themselves. Forms part of the final contract.
2 categories of terms
Express terms
Implied terms
Example of an express term
Exchange of coffee for £2.50
Example of an implied term
Coffee bought will be hot
3 types of terms
- Condition
- Warranty
- Innominate (indeterminate)
Is a condition a key or minor element of a contract?
Key
Is a warranty a key or minor element of a contract?
Minor
What can the victim do if a condition is breached?
Repudiate (end) the contract
AND
Sue for damages
What can the victim do if a warranty is broken?
Sue for damages
What can the victim not do if a warranty is broken?
Repudiate the contract
What is an innominate (indeterminate) term?
Where it is unclear whether it is a condition or a warranty
How will a court decide whether an innominate is a condition or a warranty?
On the seriousness of a breach of the term
Example of a condition
Speedboat for £10,000
Example of a warranty
Speedboat will be delivered on the morning of the 4th
Case for a condition.
Poussard v Spiers (1876)
Facts of Poussard v Spiers (1876)
Lead actress did not turn up for the first few performances. Employers could repudiate the contract
Case for a warranty
Bettini v Gye (1876)
Facts of Bettini v Gye (1876)
Singer did not turn up to the first few rehearsals. Employers could not repudiate the contract
Case for an innominate (indeterminate)
Hong Kong Fir v Kawasaki Kasan (1962)
Facts of Hong Kong Fir v Kawasaki Kasan (1962).
Contract said that a ship would be “fitted for ordinary cargo service” but for 17% of the contract time it was not. Court decided was a warranty.
What is a representation?
Something which was said during the negotiation but does not form part of the final contract
What can the wronged party not do where a misrepresentation occurs?
Sue for breach of contract
What can the wronged party sue for where a misrepresentation occurs?
Misrepresentation
Is misrepresentation more complicated and less easy to prove than breach of contract?
Yes
Examples of a term vs representation.
Term = speedboat for £10,000
Representation = Speedboat only had 1 previous owner
4 factors court take into account when deciding whether something is a term or a representation.
- Importance attached to the information
- Special knowledge or skill of the party giving the information
- Time between giving the information and the contract
- Whether the agreement was in writing
Case for importance attached to information.
Couchman v Hill (1947)
Principle from Couchman v Hill (1947).
The more important the information is to a contract, the more likely it is a term.
Cases for special knowledge or skill of the party giving the information.
- Oscar Chess Ltd v Williams (1957)
- Dick Bentley Ltd v Harold Smith Motors (1965)
Principle from Oscar Chess Ltd and Dick Bentley Ltd.
The more experienced a person is (e.g., an expert in that field), the more likely it is that the information they are giving is a term
Case for the time between giving the information and the contract.
Routledge v McKay (1954)
Principle of Routledge v McKay (1954) in regards to length between information and contract.
The longer the length between the information being given and the contract, the more likely it is that it is a representation.
Case for whether the agreement was in writing.
Routledge v McKay (1954)
Principle from Routledge v McKay (1954) in regards to whether agreement was written.
If a point is written down, it is more likely to be a term and points not written are therefore representations
