Express terms Flashcards
What is express terms
The terms which are actually recorded in a written contract or openly expressed at the time the contract is made
Implied terms
In cases which the law implies a term in a contract although it is not expressly included therein by the parties.
An implied term may be
* a condition,
* a warranty or
* an intermediate (innominate) term
Statements made by the parties during negotiations leading up to a contract can be divided into which three groups?
(a) Mere puffs – statements of no legal significance.
(b) Statements of fact or law. These statements are classified as representations if they help to induce the making of the contract.
(c) Statements of fact which the parties intend to be binding. These are terms of the contract.
The difference between a representation and a term?
Only a term is intended to be binding
In seeking to discover whether the parties intended to be bound by a statement made by one of them, the court will apply?
the court will apply an objective test
Where a statement is made during negotiations for the purpose of inducing the other party to enter into the contract, there is ground for inferring that the statement was intended to be a binding term of the contract.
but the inference can be rebutted if the party making the statement can show that it would not be reasonable to hold them bound by it.
Case law for the importance of the statement?
Bannerman v White
A statement may be regarded as a term of the contract if it can be shown that the injured party considered it so important that it would not have entered into the contract but for that statement.
Case law for the timing of the statement
Routledge v McKay
If the statement was made at the time of contracting, it is more likely to be a term of the contract than if it was made at an early stage of the negotiations.
Case law for reduction of the contract into writing
Though not decisive in classifying a statement a mere representation
Routledge v McKay
that the court was influenced by the fact that the contract had been reduced into writing and the written contract made no mention of the previous oral statement about the motorcycle being a 1941 or 1942 model.
Case law for special knowledge or skill
Oscar Chess Ltd v Williams
It was clear that the skill and expertise lay in the hands of Oscar, the car dealers, and not in the hands of Williams, who was making the statement.
Case law for assumption of responsibility / further checks
If an untrue statement is a term of the contract then this may give rise to a claim for breach of contract.
In almost all such cases the signing of a contract shows that the parties intended to be bound by it.
A party can express an intention to be bound by something they have not read or understood
L’Estrange v Graucob Ltd
For a clause to be incorporated into the contract, reasonable notice of it must be given before or at the time of contracting.
Thornton v Shoe Lane Parking
Possible boilerplate clause – ‘entire agreement’ clause
The parties agree that this agreement constitutes the entire agreement between them, and supersedes any previous understandings and/or arrangements between them, whether oral or written.
