Expressed and Implied Terms Flashcards
(Determining the Existence of a Warranty):
Position of the party making the statement:
Oscar Chess v. Williams (year of the car was mere representation, owner was an ordinary man with ordinary knowledge regarding car)
Dick Bentley v. Harold Smith
(Determining the Existence of a Warranty):
Specificity of the Statement which is made:
Bank of Ireland v. Smith (auctioneer specifically stated in the advertisement for a land that it had been pastured)
(Determining the Existence of a Warranty):
The person making the statement intended to be responsible for ITS CONTENT:
Schawel v. Reade (told the potential buyer that he did not need to continue to examinate the horse, stating that the animal was in perfect health)
(Determining the Existence of a Warranty):
The Importance of the Statement to the Party to whom it is made:
Carey v. Independent Newspaper (plaintiff was told that by taking up a new post she would have certain domestic responsibilities/duties facilitated)
Bannerman v. White
(Determining the Existence of a Warranty):
When is the statement made?
ROUTLEDGE
v.
MACKAY
PAROLE RULE
Operates to EXCLUDE any parole evidence running counter to the terms of a written contract.
Bank of Australasia v. Palmer (court held that parole evidence cannot be received to alter, add or subtract the terms of an existing written contract)
Exceptions to the parole rule (virtually abolished by judicial pronouncements, deemed archaic)
a) When the agreement is part written and part oral, parole evidence will be admissible to prove its oral content:
- Clayton Love v. B & I Steampacket (phone conversation was accepted)
- Howden Brothers v. Ulster Bank
Exceptions to the parole rule (virtually abolished by judicial pronouncements, deemed archaic)
2) When a court has to interpret the written contract by explaining its surrounding circumstances:
Black v. Grealy
Chambers v. Kelly
Exceptions to the parole rule (virtually abolished by judicial pronouncements, deemed archaic)
3) To evidence a separate contract running alongside the main contract
Harling v. Eddy
Exceptions to the parole rule (virtually abolished by judicial pronouncements, deemed archaic)
4) Parole evidence will be admissible to establish that a document which PURPORTS to be a contract is not in fact a contract for some reason.
Pym v. Campbell (document which purports to be a contract was not, in fact, a contract)
IMPLIED TERMS BY FACT
1) The Business Efficacy Test:
THE MOORCOCK
TERMS IMPLIED BY FACT
2) The Officious Bystander Test
The purpose of the test if you analyze the contract from the point of view of a hypothetical and impartial third party busybody present at the time of conclusion of the contract.
Shirlaw v. Southern Foundries Ltd
TERMS IMPLIED BY FACT
3) Custom and Practice Test
O’Reilly v. Irish Press (court held that for a particular custom to be implied in fact into a contract, it must be a notorious and generally known one)
