Contract Terms: General Flashcards
What do terms of a contract do?
Create contractual obligations
What do mere representations do?
Persuade a party to enter the agreement and they’re not binding
What does the court determine to distinguish terms from mere representations?
The intention of the parties by asking what a reasonable person would consider to be the significance of the statement
Which statements are incorporated into the contract as terms?
Significant statements
What does the case CARLILL V CARBOLIC SMOKE CALL CO say about distinguishing terms from mere representations?
Trade puff has no effect on the contract because it is a mere boast which is not taken seriously, unless some other specific promise stated as fact is attached
What does the case BISSET V WILKINSON say about distinguishing terms for mere representations?
A mere opinion has no effect on the contract because it is not based on fact and not relied upon
What does the case ESSO V MARDON day about distinguishing terms from mere representations?
Expert opinions may attach liability as terms if they important enough to have been incorporated into the contract or as misrepresentations
What are express terms?
Terms that have been specifically mentioned and agreed by both parties at the time the contract is made
How can express terms be agreed?
Verbally or written
What does the case BIRCH V PARAMOUNT ESTATES say about terms?
The more importance attached to a statement by either party, then the more likely it is that it is a term
What does the case DICK BENTLEY PRODUCTIONS LTD V HAROLD SMITH (MOTORS) LTD say about terms?
A statement may be a term if the person making it has specialist expertise and the person to whom it is made is relying on that expertise in deciding to contract
What does the car ROUTELEDGE V MCKAY say about terms?
If there is a significant lapse of time between the statement being made in the negotiations and the creation of the contract then the statement will not be incorporated into the contract as a term
What does the case L’ESTRANGE V GRAUCOB say about contracts?
If a written contract is signed this generally makes the contents of the agreement binding irrespective of whether they have been read by the party signing
What does the case O’BRIEN V MGN LTD say about terms?
As long as sufficient steps have been taken to make D aware of it, D need not actually be aware of the term
What are terms implied by fact?
Intentions which are presumed but unexpressed by the parties
What does the car HUTTON V WARREN day about implied terms by fact?
Implied terms by fact through custom or common trade practices must be clearly established and well known within the particular trade
What is the officious bystander test?
Where implied terms by fact are a necessity to enable a commercial contract to work and/or the term is so obvious that it’s implication goes without saying
Which case corresponds with the officious bystander test?
THE MOORCOCK
What are terms implied by law?
Terms which the law requires to be included irrespective of the wishes of the parties
Why has Parliament introduced statutory terms which must be implied into consumer contracts?
To balance the parties’ positions because of their unequal bargaining power
What is a condition?
A term which is so important that a failure to perform it would render the contract meaningless and destroy the purpose
What does the case POUSARD V SPIERS say about conditions?
Breach of condition gives the innocent party the right to end the agreement and/or claim damages
What is a warranty?
Any other term of the contract that is minor and where the contract might continue despite their breach
What does the case BETTINI V GYE day about warranties?
Breach of warranty only gives rise to a claim for damages
What is an innominate term?
Statements that are not defined as a condition or warranty by the parties when the contract is made but may turn into one depending on its effect on the injured party
What case corresponds with the definition of an innominate term?
HONG KONG FIR SHIPPING V KAWASAKI KISEN KAISHA
