EXPRESS TERMS

Question 1

REPRESENTATIONS

Answer 1

made with no intention of them becoming a term in the contract
used to entice parties in a contract

Question 2

A contract can be made

Answer 2

orally
written
both

Question 3

WHETHER ITS MADE IN A COMPLETELY ORAL FORM THE TASK OF THE JUDGE WILL BE FINDING OUT

Answer 3

• WHICH EXACT WORDS WERE USED
• WHETHER THESE WORDS WERE REPRESENTATIONS OR TERMS

Question 4

A TERM IS

Answer 4

seen as an expression of willingness by both parties to be bound by the obligation. if breached it will give the other party the right to sue

Question 5

EXPRESS TERM

Answer 5

THOSE AGREED UPON BY BOTH PARTIES AT THE TIME CONTRACT IS FORMED

Question 6

FACTORS TO CONSIDER WHEN INCORPORATING STATEMENTS AS TERMS OF THE CONTRACT

Answer 6

• TIMING
• IMPORTANCE OF THE TERM
• REDUCTION OF TERMS IN WRITING
• INCORPORATION BY SIGNATURE
• PAROL EVIDENCE RULE

Question 7

TIMING

Answer 7

if there is a significant gap btw the making of the statement and the contract courts will be reluctant to incorporate statement
(ROUTLEDGE V MCKAY)

Question 8

IMPORTANCE OF TERM

Answer 8

(BANNERMAN V WHITE)
(COUCHMAN V HILL)

Question 9

SPECIAL KNOWLEDGE AND SKILLS

Answer 9

courts are willing to accept that statement made by parties with specific expertise relevant to the contract can be relied on. there will be no need to check the accuracy of statement
(DICK BENTLEY PRODUCTIONS V HAROLD SMITH)

Question 10

REDUCTION OF TERMS IN WRITING

Answer 10

if an oral agreement is partly reduced into a written agreement courts have to decide whether the written alone should represent the contract or whether the contract should be regarded as partly written or partly oral.
(BIRCH V PARAMOUNT ESTATES)

Question 11

INCORPORATION BY SIGNATURE

Answer 11

general rule is that if a person signs a document they will be bound by the terms of that contract whether they have read it or not

Question 12

PAROL EVIDENCE RULE

Answer 12

written evidence is more powerful and convincing than the spoken word. where a written contract is subsequently followed by an oral agreement that is not incorporated into the contract then it will be inferred by the courts that the oral statement was not intended to be part of the contract.

• any oral or other evidence that the party introduces to show that the actual agreement should not be accepted is inadmissible if it is used to add, vary or contradict the terms contained.

Question 13

THE PAROL EVIDENCE RULE IS JUSTIFIED ON TWO BASES

Answer 13

• if the contract is in written form, it is logical to contain all the terms. anything omitted was not intended to be included
• to do otherwise could create uncertainty

Question 14

EXCEPTION OF THE PAROL EVIDENCE RULE

Answer 14

• there is evidence of custom or trade usage
• oral evidence can be adduced to show that the contract would not be operative until some specified event takes place
• party can quote evidence to show that the contract was not binding, incapacity, lack of consideration or mistake
• the written doc is used to show that there was a prior oral agreement but does so inaccurately
• a collateral agreement is shown which shows proof a former contract existed