Express and Implied Terms

Question 1

What is a term?

Answer 1

A term sets out the obligations on the parties under the agreeement

Question 2

What is an express term?

Answer 2

A term laid out by the parties themselves

Question 3

What is an implied term?

Answer 3

A term assumed by courts or in statute e.g consumer regulations

Question 4

What is a representation?

Answer 4

A statement that has induced a party to contract (no liability attached)

Question 5

What is a misrepresentation?

Answer 5

A false statement that has wrongly induced a party to contract

Question 6

Guidelines distinguishing a express term from a representation

Answer 6

• Importance of statement
• Skill/Expertise of person
• Timing of statement
• Written

Question 7

Bannerman v White

Answer 7

Sale of hops-asked if treated with sulfur B-said they had not-this was false so was a term (made no sense without)

Question 8

Dick Bentley Production v Harold Smith

Answer 8

Car sold ‘well vetted’ with 20k miles. False, car had more. Held:statement was a term as he was an expert

Question 9

Routledge v McKay

Answer 9

Motorbike sold-seller said made in 1942 just before contract, was in fact older. Held: a term

Question 10

Terms implied by fact

Answer 10

Terms not laid down in the contract, but assumed both parties would have intended to include

Question 11

M&S v BNP Paribas

Answer 11

SC laid out rules for implied terms

1. Implied if without it, contract lacks commercial coherence
2. Implied if necessary for business efficacy
3. Must satisfy test for business necessity 2B 1C

Question 12

Shirlaw v Southern Foundries

Answer 12

Implied term determined by officious bystander test. So obvious it goes without saying ‘oh of course!’

Question 13

Business efficacy test, and the case?

Answer 13

Term is implied if essential to make the contract function, and reflect parties intention

The Moorcock

Question 14

The Moorcock

Answer 14

Water too shallow, boat damaged. Held:implied term that they could park without suffering damages.

Question 15

Liverpool City Council v Irwin

Answer 15

Flat staircases were trashed and broken lifts. Contract did not include maintence of block as an express term. Court used officious bystander and was an implied

Question 16

2 ways terms can be implied

Answer 16

Implied by fact

Implied by law (consumer rights)

Question 17

Terms implied by law: the 2 acts

Answer 17

CRA 2015

Consumer Contracts Regulations 2013

Question 18

Outline SADFART

Answer 18

Satisfactory quality
As
Described
Fit for purpose
A
Reasonable 
Time

Question 19

S9 CRA 2015

Answer 19

Satisfactory quality-not faulty or damaged. What a reasonable person would consider satisfactory

Question 20

s10+11CRA 2015

Answer 20

s10-Fit for purpose

s11-As described

Question 21

s20CRA 2015

Answer 21

s20-can reject goods that don’t meet SADFART for a full refund within 30 days

Question 22

s23 CRA 2015 + what’s the 6 month presumption

Answer 22

Have to give retailer chance to repair or place after 30 days, if unsuccessful-refund or price reduction

Within 6 months=fault since purchase
After 6 month-burden on consumer to prove it was fault at time of delivery (6 year length to bring case)

Question 23

s28 delivery

Answer 23

retailer responsible until arrival

right to terminate if failure to deliver over 30 days

Question 24

s49-52 CRA 2015

Answer 24

Supply of services
s49-reasonable care taken
s50-binding information (reliance)
s51-reasonable price
s52-reasonable time

Question 25

s56+57 CRA 2015

Answer 25

s55-repeat service

s56-price reduction (up to 100%, issued within 14 days of agreement of the refund)

Question 26

s62 CRA 2015

Answer 26

Unfair contract terms e.g fees and charges in small print