express and implied terms Flashcards
what is the difference between express and implied terms
express = specifically agreed in the contract implied = implied in the contract
what are the three ways terms can be catergorised
1) a condition
2) a warranty
3) an innominate term
what will a condition term be. Breach of
central to the contract. If a party fails to perform a conditional term then it would destroy the main purpose of the contract. BREACH OF IT MAY ALLOW FOR THE CONTRACT TO BE REPUDIATED.
what is repudiation
the party of a contract bringing it to a premature end
what is a case that said a condition will go to the root of a contract
Possard, actress agreed to perform the lead role in a play, she failed to show for the first two performances and was replaced by an understudy. She had broken the contract as her role was a condition. This meant there could be repudiation
what is a warranty
a minor term of the contract. only damages can be awarded for a breach of a warranty. the main purpose of the contract can still go ahead.
what is a case for a warranty involving a singer
Bettini. a singer was contracted to perform a series of concerts and six days of rehearsal. he did not attend the first three days so was replaced. he was not allowed to perform when he showed up on the fourth day. This was a breach of warranty the singer was awarded damages
what is a an innominate term
a term of a contract that is not a clear condition or warranty. it may be viewd as a condition or warranty depending on the consequences
what is a case involving a cargo ship for innominate terms
Hong Kong Fir Shipping LTD. D chartered cargo ship from the claimant for two years. a term was that the ship should be fitted in every way to ordinary cargo service. the ship was not seaworthy and took 18 weeks to repair. It was unclear whether this was a condition or warranty but it was decided that it was a warranty so only damages could be rewarded
how do the courts determine whether something is s representation ( description) or a term of a contract
lookign at:
- the importance attached to the representation
- special knowledge or skill of the person making the statement
- any time lage between making the statement and making the contarcat
- whether there is a written contract
what is a case for the importance attached to representataion
Couchman, an auction said that a cow was not pregnant, the auctioneer and farmer confirmed this, the cow was pregnant and died whilst giving birth. This was essential information so was taken as a term rather than a representtaion
what isa case for special knowledge or skill attahed to the person making the statement
Oscar Chess.
Private seller of a car believed it to be a 1948 model. It was much older. Not a term but a representation.
what is a case for time lag between statement and contract
Routeledge, contract was made later and did not refer to the date of the vehicle. time lag was 7 days. actual date of manufacturing was not seen as important. the statement was a representation and not a term on contract
when will acts of parliament be relevant in expressing terms
business- business agreements and business to consumer agreements
what are the two acts of parliament for business to business agreements
Sale of Goods act 1979, Sale of Goods and services act 1982
what two ways can can common law imply terms
1) through business efficacy and the officious bystander test
2) by customer or prior dealings between the parties
what is the two part business eficacy test used by the courts
1) is the term necessary to make the contract effective
2) if the parties to the contract had thought about it, would they have agreed that the suggested term was obviously going to be in the contract
what is a case where the courts used the two part efficacy test involving a wharf
the moorcock. D owned a wharf and agreed to let C dock their ship and unload cargo at his wharf. The ship grounded and broke on a ridge. D tried to claim that there was no term covering this. The courts added an implied term that the wharf would be safe for docking and the ship would not be damaged.
what is the officious bystander case and what case was it established in
Shirlaw. When an implied term ina contract is so obvious that if an aoffcious bystander were to express some express provision for it the parties would react by saying ‘Oh, of course!’
what is a case for when terms will not be implied if the party would never have agreed to the term (involves petrol)
Shell UK LTD. In the contract, Shell had supplied petrol and oil to Lostock who agreed to buy these products only from shell. Shell later supplied petrol to other garages at a lower price as part of the price war. Lostock tried to claim that there was an implied term that shell would only sell to them . The courts said there coulcnt be an implied term because shell would never agree to it.
what is mean tby a term implied by custom.
a term that is obvious in the context of a local normality (custom)
what is a case for a term implied by custom
Hutton. at the end of an agricultural lease, a tenant farmer was entitled to an allowance for seed and labour on the land. Held, the terms of the lease must be viewed in the light of the custom
what two other ways can terms be implied
by customs, by previous dealings between the parties
what is a case for terms implied by previous dealings between the parties
Hillas. A contract lacked specific details but because of previous dealings there were cleare implied terms
what is the first term implied in the sales of goods act 1979 and in what section and what is a case for this
s.13 goods must be obviously correspondent to the description they have been given, including with packaging
Re Moore. the contract involved tinned peaches sold in cartons of 30 tins. a carton only contained 24 tins, this was a clear breach of s.13 of the sale of goods acvt 1979
what is the second implied term in the sale of goods act 1979 and in what section
s14(2). implied condition that the goods are of satisfactory quality.
what is the third implied term in the sale of goods act 1979 and in what section
s14 (3). implied condition of the goods are fir for their purpose.
what are the two implied terms in the sales of good and services act 1982 and in what sectipns
s. 13 implied term that the service will be carried out with reasonable care and skill
s. 14 implied term that the service will be carried out within reasonable time
