Express and Implied Terms

Question 1

PRE CONTRACTUAL STATEMENTS

Importance:

Bannerman v White

Answer 1

Facts: •Sale of hops between buyer and seller
• Buyer was assures hops had been treated
• Hops had been treated with sulphur

Judgment: Buyer could repudiate

L.P: • Pre contractual statement had become part of the contract, therefore C could repudiate

Question 2

PCS

Writing:

Evans + Son Ltd v Andrea Merzario

Answer 2

L.P: • To ensure a term, put it in writing

Question 3

PCS

Reliance:

Dick Bently Productions v Harold Smith motors

Answer 3

Facts: • C wanted to buy a car from D
• D told C the mileage of the car was only 20,000 since being fitted with a new engine and gearbox
• After taking it for a trial run C bought the car
• Soon after car experienced a lot of difficulty
• Cars mileage was closer to 100,000

Judgment: Claim succeeded

L.P: • Intelligent bystander test: what would an intelligent bystander infer from the conduct of the parties if they meant to contract?

Question 4

PCS

Lapse of time:

Routledge v McKay

Answer 4

L.P: • More time between statement and formation = less likely to be part of the contract

Question 5

EXPRESS TERMS

Incorporation:

Interfoto Picture Library v Stiletto Visual Programmes

Answer 5

L.P: • More burden is needed for unusual and onerous clauses

Question 6

ET

Parole Evidence rule exceptions:

Robertson v Jackson

Answer 6

L.P: • Ambiguity

Question 7

ET

Parole evidence rule exceptions:

Allen v Pink

Answer 7

L.P: •Incomplete agreement

Question 8

ET

Parole Evidence rule exceptions:

Smith v Wilson

Answer 8

L.P: • custom

Question 9

ET

Parole Evidence rule exceptions:

Pym v Campbell

Answer 9

L.P: •Starting or finishing date

Question 10

IMPLIED TERMS

What are the four types of implied term?

Answer 10

Terms implied by Custom
Terms implied in fact
Terms implied by law
Terms implied by statute

Question 11

Terms implied by Custom case

Answer 11

Hutton v Warren

Question 12

Terms implied in fact

Answer 12

The Moorcock:

• Business necessity

Question 13

Terms implied by Law

Answer 13

Liverpool City Council v Irwin

Question 14

Acts to take in to exam:

Answer 14

Sale of Goods Act 1979
Unfair Contract Terms Act 1977
Consumer Rights Act 2015

Question 15

Conditions and warranties

Poussard v Spiers

Answer 15

Facts: • C agreed to play lead role in D’s theatre
•C attended rehearsals but then fell ill and could not attend any in the last week
• Someone else was found to perform as C was too ill to perform in the first 3 days
• C got better and tendered her services but D refused

Judgment: C claim succeeded

L.P: • When a condition is broken -> other party can terminate contract

Question 16

Conditions and warranties:

Bettini v Gye

Answer 16

Facts: • C agreed to play in D’s theatre
• C agreed not to sing anywhere else
• C missed rehearsals but arrived on day ready to perform
•D refused to allow C in to service

Judgment: Rehearsals were not a condition

L.P: • Rehearsals did not go to the root of the contract

Question 17

Innominate term

Hong Kong Fir Shipping v Kawasaki Kisa Kaisha

Answer 17

Facts: • A ship was delivered to the charters
• Ship had to be seaworthy and in a seaworthy condition
• Ship required constant maintenance
• Vessels owners chief engineer was incompetent
• Charterers repudiated the contract alleging breach to deliver a seaworthy vessel

Judgment: Not a condition

L.P: • Seaworthiness was an innominate term