contractual terms Flashcards
what is a mere puff?
a statement of opinion or extravagant sales talk that no no one would take seriously. no legal consequences if any such statement is inaccurate
what is a representation?
a statement of fact made by one of the parties to the other in advance of the contract which has the effect of persuading the other to enter the contract
what is a term?
an aspect of the agreement between the parties, each term is an obligation which the party who agreed to it must carry out. if a party fails to perform a term the other may sue for breach of contract
what are the various factors the courts consider to distinguish between terms and representations?
time - the later the statement is made the more likely it is to be a term
reduction into writing - any statement left out of a written version is likely to be a representation, anything included in written version likely to be a term
importance of statement - more important = term
knowledge & skill - the more skilled and experienced the statement maker is compared to other party the more likely it is to be a term
strength of statement - stronger statement = term
what are the two types of terms?
express and implied
what are express terms?
explicitly referred to by the parties
what are implied terms?
not stated by the parties but form part of the contract
what are the ways that a term can be implied?
by statute
by custom - customary that the parties should deal on that basis
trade usage - commonly part of contracts in a particular trade or industry
as a matter of fact - obvious parts of a contract that must be present to make it work. terms were so obvious they did not need to be said - officious bystander test
by law - court decides as a matter of law that a particular term should be part of the contract
what are conditions?
the major terms of the contract which if breached is likely to wreck the contract
if one party breaks a condition the other may sue for damages or repudiate the contract
what are warranties?
minor terms within a contract that deal with less serious matters
if breached the other can sue for damages but can’t repudiate
how is a remedy determined for an innominate term?
the court will look at the actual effect on the innocent party
