contract terms - TERMS Flashcards
contract term definition
written or spoken agreement which includes specific points in a contract and if it is breached it can lead to legal action
express terms
term that is expressly agreed between the parties and it does not have to be written down it can be verbal
Contract conditions
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
Implied terms
terms that haven’t been agreed expressly by either party
Representation
statement of fact or opinion made prior to contract being entered into
innominate terms
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
Warranties
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
Poussard v Spiers
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
Bettini v Gye
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
Hong Kong Fir Shipping co. LTD v Kawasaki
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
What do the courts look at to decide if it’s representation or term (ONLY NEED ONE THAT’S MOST RELEVANT)
- 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
- 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
- importance of statement
- Time between making statement and forming the contract
Difference between a representation and contract term
-representations or statements made to negotiations, more likely to be a term if it is written in contract
Couchman v Hill
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
Oscar Chess v Williams
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
Dick Bentley v Harold Smith
Term, not representation as made by dealer (the person with the specialist knowledge)