contract terms - TERMS

Question 1

contract term definition

Answer 1

written or spoken agreement which includes specific points in a contract and if it is breached it can lead to legal action

Question 2

express terms

Answer 2

term that is expressly agreed between the parties and it does not have to be written down it can be verbal

Question 3

Contract conditions

Answer 3

obligation to fulfil duties, goes to the heart of the contract and if it is breached the injured party can repudiate contract, so end it

Question 4

Implied terms

Answer 4

terms that haven’t been agreed expressly by either party

Question 5

Representation

Answer 5

statement of fact or opinion made prior to contract being entered into

Question 6

innominate terms

Answer 6

immediate term which cannot be defined as either a condition or warranty, it can be condition if it’s serious or a warranty and if it’s a warranty and breached you can claim damages

Question 7

Warranties

Answer 7

assurance/promise in contract, a breach of this does not destroy the purpose of a contract as it doesn’t go to the heart of the contract

Question 8

Poussard v Spiers

Answer 8

was in breach of condition and entitled to end contract

-entered contract to perform as an opera singer for three months but became ill for five days and could not perform so was replaced

Question 9

Bettini v Gye

Answer 9

breach of warranty as the employer was not entitled to end the contract

-agreed my contract to perform as opera singer for three months but became ill and missed six days and was sacked and replaced

Question 10

Hong Kong Fir Shipping co. LTD v Kawasaki

Answer 10

gave us innominate terms, Can be identified as a condition or warranty depending on the consequences of breach and so deciding on the remedy

-agreement that the ship should be seaworthy however there were problems with the engine and was out of service for five weeks

Question 11

What do the courts look at to decide if it’s representation or term (ONLY NEED ONE THAT’S MOST RELEVANT)

Answer 11

1. parole evidence rule, written contract, anything discussed is deemed to be representation as if it was important enough it would’ve been written down in the contract
2. relative expertise of parties, if it is private there’s no relative expertise, if they had expertise it’s more likely to be a term and if they didn’t it is likely to be representation
3. importance of statement
4. Time between making statement and forming the contract

Question 12

Difference between a representation and contract term

Answer 12

-representations or statements made to negotiations, more likely to be a term if it is written in contract

Question 13

Couchman v Hill

Answer 13

statement was clearly important to purchaser and it was a term rather than representation so legal action can be taken

-defendant put female cow for sale and said that she wasn’t pregnant when she was which changed the conditions of the contract

Question 14

Oscar Chess v Williams

Answer 14

representation rather than a term as a private seller is not expected to know and the dealer should’ve had expertise to realise

purchase secondhand car on the basis it was the 1948 model but found out it was a 1939 model and was worth much less

Question 15

Dick Bentley v Harold Smith

Answer 15

Term, not representation as made by dealer (the person with the specialist knowledge)

Question 16

Routledge v Mackay

Answer 16

A representation is less likely to become a term the greater the delay between the making of the statement and forming of the contract

A week had elapsed between negotiations of the motorcycle and Sidecar and it was not deemed important enough to be written in the contract