express and implied terms Flashcards
what is a condition?
term in contract that is central to the contract where breach may allow contract to be repudiated-(Poussard v Spiers and Pond)
what is repudiation?
ending of a contract
what is rescission?
equitable remedy that is made at discretion of the judge-puts parties back in place pre contract
what is a warranty?
minor term which if breached does not end contract but allows claim for damages only-(Bettini v Gye)
what is an innominate term?
not defined as condition or warranty-depends on consequences of any breach of term-(Hong Kong Fir Shipping Co. v Kawasaki Kisen Kaisha)
how to tell if something is a term or mere representation?
importance attached to the representation-(Couchman v Hill)
special knowledge or skill of person making the statement-(Oscar Chess v Williams)
any time lag between making the statement and making the contract-(Routledge v Mackay)
whether there is a written contract
how can terms be implied?
common law-business efficacy and officious bystander test-is term necessary to make the contract effective?-(The Moorcock)
by custom-(Hutton v Warren)
course of dealing between parties-(Hillas v Arcos)
what are the other rules for implied terms?
if parties never agreed to them if thought about them-(She’ll UK v Lostock Garage)
implied terms reflect clear intention of parties-(Egan v Static Control Components (Europe))
reasonableness is to be judged objectively-(Marks and Spencer v BNP Paribus Securities Services Trust Company (Jersey))
what is a consumer?
individual acting for purposes that are wholly or mainly outside that individuals trade, business, craft or profession-(Consumer Rights Act 2015)
what is a trader?
person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally through another person acting in that trader’s name or on the trader’s behalf
what does section 9 of the CRA say?
right of satisfactory quality
every contract to supply goods is to be treated as including a term that the quality of the goods is satisfactory
- any description of the goods
- the price or other consideration for the goods
- all other relevant circumstances
when will section 9 not apply?
defects specifically drawn to consumers attention before contract made
consumer examined good before contract made in relation to any defect the examination would’ve revealed
where goods have been sold after inspection of a sample and defect would’ve been apparent on reasonable examination of the sample
objective test-views of reasonable person
what is section 10 of CRA?
right of fitness for particular purpose
if buyer relying on skill and judgement of seller in buying the goods and has expressed a particular purpose for which goods are required, implied condition will be in the contract?-(Baldry v Marshall)
doesn’t need to state purpose-(Grant v Australian Knitting Mills)
what is section 11 in CRA?
right relating to description
every contract to supply goods for description is to be treated as including a term that the goods will match the description
(Beale v Taylor)
what are the remedies for breach of term implied into contracts for the supply of goods?
short term right to reject-S.20-within 30 days of delivery
right to repair or replacement-S.23
right to price reduction or final right to reject-S.24
