Express and Implied Terms

Question 1

Term v Representation:
Verification (2)

Importance

Time

Expertise / knowledge (3)

Answer 1

Ecay v Godfrey
Shawel v Reade

Bannerman v White

Routledge v McKay

Oscar Chess v Williams
Dick Bentley Productions v Harold Smith (Motors)
Beale v Taylor

Question 2

Parole Evidence Rule

Answer 2

Jacobs v Batavia and General Plantations Trust

Question 3

Exceptions to Parole Evidence Rule (written agreement is not the whole agreement) (2)

Answer 3

Allen v Pink - written doc was a memorandum only

Hutton v Watling - written doc was not just memorandum, was contract

Question 4

Incorporation through signature

Answer 4

L’Estrange v Graucob

Question 5

Incorporation through notice:
Notice must be given at/ before time of contracting

Terms must be contained/ referred to in a contractual document

Reasonable steps must be taken to bring terms to attention of the other party (3)

Answer 5

Olley v Malborough Court

Chapelton v Barry Urban District Council

Thompson v London, Midland and Scottish Railway
Thornton v Shoe Lane Parking
Interfoto v Stiletto

Question 6

Incorporation by course of dealing

In a regular course of dealing using the same terms each time, it will be assumed in further dealings that the other party is aware of the terms.

Regular - more than 100 over 3 years

3-4 times over 5 years, no regularity.

Answer 6

Spurling v Bradshaw

Hadwick Game Farm v Suffolk Agriculture Poultry Producers

Hollier v Rambler Motors

Question 7

Implied terms from custom

notorious, certain and reasonable

Answer 7

Peter Darlingston Partners Ltd v Gosho Co Ltd

Question 8

Implied terms from fact:
Officious Bystander Test

Business Efficacy Test - What a reasonable person in place of the parties would have intended

Would the contract lack commercial / practical coherence without the term/ is the term necessary for the contract to work?

Answer 8

Shirlaw v Southern Foundries

The Moorcock

Marks and Spencer Plc v BNP Paribas Securities Services Trust Co

Question 9

Implied terms by common law/ court:
Test of necessity not reasonableness

Does the nature of the contract itself mean the term is necessarily implied for it to work? (3)

Answer 9

Liverpool City Council v Irwin

Scally v Southern Health and Social Services Board
Nottingham University v Eyett
Crossley v Faithful & Gould Holdings Ltd