express and implied terms

Question 1

what is the difference between express and implied terms

Answer 1

express = specifically agreed in the contract
implied = implied in the contract

Question 2

what are the three ways terms can be catergorised

Answer 2

1) a condition
2) a warranty
3) an innominate term

Question 3

what will a condition term be. Breach of

Answer 3

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.

Question 4

what is repudiation

Answer 4

the party of a contract bringing it to a premature end

Question 5

what is a case that said a condition will go to the root of a contract

Answer 5

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

Question 6

what is a warranty

Answer 6

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.

Question 7

what is a case for a warranty involving a singer

Answer 7

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

Question 8

what is a an innominate term

Answer 8

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

Question 9

what is a case involving a cargo ship for innominate terms

Answer 9

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

Question 10

how do the courts determine whether something is s representation ( description) or a term of a contract

Answer 10

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

Question 11

what is a case for the importance attached to representataion

Answer 11

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

Question 12

what isa case for special knowledge or skill attahed to the person making the statement

Answer 12

Oscar Chess.

Private seller of a car believed it to be a 1948 model. It was much older. Not a term but a representation.

Question 13

what is a case for time lag between statement and contract

Answer 13

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

Question 14

when will acts of parliament be relevant in expressing terms

Answer 14

business- business agreements and business to consumer agreements

Question 15

what are the two acts of parliament for business to business agreements

Answer 15

Sale of Goods act 1979, Sale of Goods and services act 1982

Question 16

what two ways can can common law imply terms

Answer 16

1) through business efficacy and the officious bystander test
2) by customer or prior dealings between the parties

Question 17

what is the two part business eficacy test used by the courts

Answer 17

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

Question 18

what is a case where the courts used the two part efficacy test involving a wharf

Answer 18

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.

Question 19

what is the officious bystander case and what case was it established in

Answer 19

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!’

Question 20

what is a case for when terms will not be implied if the party would never have agreed to the term (involves petrol)

Answer 20

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.

Question 21

what is mean tby a term implied by custom.

Answer 21

a term that is obvious in the context of a local normality (custom)

Question 22

what is a case for a term implied by custom

Answer 22

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

Question 23

what two other ways can terms be implied

Answer 23

by customs, by previous dealings between the parties

Question 24

what is a case for terms implied by previous dealings between the parties

Answer 24

Hillas. A contract lacked specific details but because of previous dealings there were cleare implied terms

Question 25

what is the first term implied in the sales of goods act 1979 and in what section and what is a case for this

Answer 25

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

Question 26

what is the second implied term in the sale of goods act 1979 and in what section

Answer 26

s14(2). implied condition that the goods are of satisfactory quality.

Question 27

what is the third implied term in the sale of goods act 1979 and in what section

Answer 27

s14 (3). implied condition of the goods are fir for their purpose.

Question 28

what are the two implied terms in the sales of good and services act 1982 and in what sectipns

Answer 28

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