Express Terms Flashcards
Express terms
Matters which are discussed during negotiations and then clearly added to the contract
Common law test
How important was the representation?
A party relies on the skill of the other making the representation
Was the written agreement signed?
A representation is not a term unless both parties are aware of it when making a contract
How important was the representation?
If either party attaches great importance to a statement made during negotiations, then it is likely to be considered to be a term of contract
Birch v paramount estates 1956
Birch v paramount estates 1956
Were told that their new build house “would be as good as the show house” when it wasn’t they sued
Representation held to be a term
A party relies on the skill of the other making the representation
If a party makes a specific representation due to their level of expertise and the other party relies upon it then the representation is likely to become a term
Dick Bentley productions v Harold smith motors
Oscar chess v William 1957
Dick Bentley productions v Harold smith motors
C asked D to find a “well vetted Bentley”
D found a car but falsely stated that it had done 20,000 when it had actually done 100,000
C had relied on D’s expertise and therefore the mileage became a term of the contract
Oscar chess v William 1957
W states that it was a 1948 morris when it was a 1939 morris to the dealer
Was the written agreement signed?
Courts will usually take this as both parties have read and understood if signed
L’estrange v graucob 1934
L’estrange v graucob 1934
Exclusion clause written in contract
It was signed
When cigarette vending machine broke at was not liable
A representation is not a term unless both parties are aware of it when making a contract
If a party is unaware of a term which is relied upon later by one of the parties, then it is unlikely to be actionable
