Contract terms-Conditions, warranties and innominate terms

Question 1

What are terms of a contract?

Answer 1

What the parties have agreed between themselves. Forms part of the final contract.

Question 2

2 categories of terms

Answer 2

Express terms
Implied terms

Question 3

Example of an express term

Answer 3

Exchange of coffee for £2.50

Question 4

Example of an implied term

Answer 4

Coffee bought will be hot

Question 5

3 types of terms

Answer 5

1. Condition
2. Warranty
3. Innominate (indeterminate)

Question 6

Is a condition a key or minor element of a contract?

Answer 6

Key

Question 7

Is a warranty a key or minor element of a contract?

Answer 7

Minor

Question 8

What can the victim do if a condition is breached?

Answer 8

Repudiate (end) the contract
AND
Sue for damages

Question 9

What can the victim do if a warranty is broken?

Answer 9

Sue for damages

Question 10

What can the victim not do if a warranty is broken?

Answer 10

Repudiate the contract

Question 11

What is an innominate (indeterminate) term?

Answer 11

Where it is unclear whether it is a condition or a warranty

Question 12

How will a court decide whether an innominate is a condition or a warranty?

Answer 12

On the seriousness of a breach of the term

Question 13

Example of a condition

Answer 13

Speedboat for £10,000

Question 14

Example of a warranty

Answer 14

Speedboat will be delivered on the morning of the 4th

Question 15

Case for a condition.

Answer 15

Poussard v Spiers (1876)

Question 16

Facts of Poussard v Spiers (1876)

Answer 16

Lead actress did not turn up for the first few performances. Employers could repudiate the contract

Question 17

Case for a warranty

Answer 17

Bettini v Gye (1876)

Question 18

Facts of Bettini v Gye (1876)

Answer 18

Singer did not turn up to the first few rehearsals. Employers could not repudiate the contract

Question 19

Case for an innominate (indeterminate)

Answer 19

Hong Kong Fir v Kawasaki Kasan (1962)

Question 20

Facts of Hong Kong Fir v Kawasaki Kasan (1962).

Answer 20

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.

Question 21

What is a representation?

Answer 21

Something which was said during the negotiation but does not form part of the final contract

Question 22

What can the wronged party not do where a misrepresentation occurs?

Answer 22

Sue for breach of contract

Question 23

What can the wronged party sue for where a misrepresentation occurs?

Answer 23

Misrepresentation

Question 24

Is misrepresentation more complicated and less easy to prove than breach of contract?

Answer 24

Yes

Question 25

Examples of a term vs representation.

Answer 25

Term = speedboat for £10,000
Representation = Speedboat only had 1 previous owner

Question 26

4 factors court take into account when deciding whether something is a term or a representation.

Answer 26

1. Importance attached to the information
2. Special knowledge or skill of the party giving the information
3. Time between giving the information and the contract
4. Whether the agreement was in writing

Question 27

Case for importance attached to information.

Answer 27

Couchman v Hill (1947)

Question 28

Principle from Couchman v Hill (1947).

Answer 28

The more important the information is to a contract, the more likely it is a term.

Question 29

Cases for special knowledge or skill of the party giving the information.

Answer 29

1. Oscar Chess Ltd v Williams (1957)
2. Dick Bentley Ltd v Harold Smith Motors (1965)

Question 30

Principle from Oscar Chess Ltd and Dick Bentley Ltd.

Answer 30

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

Question 31

Case for the time between giving the information and the contract.

Answer 31

Routledge v McKay (1954)

Question 32

Principle of Routledge v McKay (1954) in regards to length between information and contract.

Answer 32

The longer the length between the information being given and the contract, the more likely it is that it is a representation.

Question 33

Case for whether the agreement was in writing.

Answer 33

Routledge v McKay (1954)

Question 34

Principle from Routledge v McKay (1954) in regards to whether agreement was written.

Answer 34

If a point is written down, it is more likely to be a term and points not written are therefore representations