Express and Implied Terms Flashcards
chapter 6
What are the three main ways terms can be incorporated into a contract?
○ Signature
○ Reasonable notice before or at the time of the contract
○ A previous consistent course of dealing
What factors do courts consider when deciding if reasonable notice of a term has been given?
○ Nature of the document: Would a reasonable person expect contract terms in this type of document?
○ Timing: Was the notice given before or at the time of the contract?
○ Onerous terms: The more onerous the term, the more that must be done to bring it to the other party’s attention
○ Legibility: Is the exemption clause legible?
○ Notice of terms on the back: If the terms are on the back of a document, is there a note on the front drawing attention to them?
What are the three classifications of contract terms?
○ Conditions (important terms)
○ Warranties (minor terms)
○ Innominate or intermediate terms
What is the consequence of breaching a condition?
The innocent party can terminate the contract and claim damages.
What is the consequence of breaching a warranty?
The only remedy is damages.
What is the ‘wait and see’ approach related to innominate terms?
The remedy depends on the seriousness of the breach. The innocent party can only terminate if the breach deprives them of substantially the whole benefit of the contract.
What are the main categories of implied terms?
○ Terms implied by custom
○ Terms implied in fact
○ Terms implied in law
○ Terms implied by statute
What is the Sale of Goods Act 1979 (SGA) mainly concerned with?
It implies terms into business-to-business contracts for the sale of goods.
What are some of the key implied terms under the SGA 1979?
○ The seller has the right to sell the goods
○ Goods will correspond with their description
○ Goods are of satisfactory quality
○ Goods are fit for purpose
What does the Supply of Goods and Services Act 1982 (SGSA) cover?
It implies terms into contracts for work/services and contracts involving both the supply of work and materials (goods) in business-to-business contracts
What are some of the implied terms under the SGSA 1982?
○ The supplier has the right to transfer the property in the goods
○ Goods will correspond with their description
○ Goods will be of satisfactory quality
○ Goods will be fit for purpose
○ Work/service will be carried out with reasonable care and skill
What does the Consumer Rights Act 2015 (CRA) cover?
It implies terms into business-to-consumer contracts for the sale of goods and the supply of goods and services.
What are some of the key implied terms under the CRA 2015?
○ Goods will be of satisfactory quality
○ Goods will be fit for purpose
○ Goods will correspond with their description
○ Seller has the right to sell/transfer the goods
○ Work or service will be carried out with reasonable care and skill
● A reasonable price will be charged if not fixed
● The work will be done within a reasonable time if no time is fixed
What are a consumer’s rights if goods don’t conform to the contract under the CRA 2015?
○ Short-term right to reject and get a full refund
○ Right to repair or replacement
○ Right to a price reduction or final right to reject and get a partial refund
What is the time limit for the short-term right to reject non-perishable goods?
30 days after they have been bought, delivered, and, where appropriate, installed
