expressed and implied terms

Question 1

how can clauses be put into a contract

Answer 1

. either expressing it or making it clear
. implied into the contract

Question 2

types of terms

Answer 2

a contract, a warranty, innominate terms

Question 3

what is a condition?

Answer 3

term in a contract that is so important that if it is failed to be performed it destroys the main purpose of the contract. this will end the contract through repudiations.

Question 4

a case for conditions

Answer 4

Poussard v spiers and ponds- actress agreed to perform the lead role in a production. failed to go to the first few performances. given an understudy. when she attended, not allowed to be in play as she didn’t show up.

Question 5

what is a warranty

Answer 5

a minor term in the contract. only damages can be claimed, cannot repudiate.

Question 6

case for a warranty

Answer 6

Bettini v gye- 6 rehearsals, 3 missed, they wouldn’t let him perform. he was awarded damages for loss of earnings as he showed up to all of the contracts.

Question 7

what are innominate terms

Answer 7

not clearly a condition or warranty- looks at the consequences to decide.

Question 8

case for innominate terms

Answer 8

Hong Kong fir shipping v Kawaski Kisen Kaisha- cargo ship chartered for 2 years. showed up 18 weeks late. defendant repudiated the contract. court decided it was a warranty so was awarded damages.

Question 9

factors to find out if it is a representation or a term

Answer 9

. the importance attached to the representation
. special knowledge of the person making the contract
. a time lag between the statement and the contract
. whether it is written in the contract

Question 10

case for the importance attached to the statement.

Answer 10

Couchman v hill- catalogue started that the heifer wasn’t pregnant. the farmer confirmed this. the heifer was pregnant and died. very important so taken as a term not a representation.

Question 11

cases for special knowledge of the person

Answer 11

. Oscar chess v Williams- private seller of a car believed it to be 1948 however it was much older. this was a warranty.
. dick Bentley v Harold smith- car dealer said that the car had 20,000 miles however it had done 100,000 miles. this was a condition as it was significant to the contract.

Question 12

case for time lag

Answer 12

Routledge v MacKay- the contract was made later and did not refer to the date of the vehicle. the time lag was 7 days. not important to the contract, so a representation, not a condition

Question 13

case for a written contract

Answer 13

Routledge v MacKay- the court tends to presume that everything the parties wanted in the contract would be included in writing.

Question 14

the 2 ways terms can be implied

Answer 14

. common law
. statute

Question 15

what is statutory implied terms

Answer 15

it can be seen in acts whether it was business to business or business to consumer, such as the consumer rights acts.

Question 16

2 ways in which terms can be applied in common law

Answer 16

. through business efficacy and the officious bystander test
. by custom or prior dealings between parties

Question 17

what is business efficacy and officious bystander test

Answer 17

the courts will imply a term into a contract if the term is necessary to make sure that the contract works. is the term necessary to the contract? if the parties to the contract had thought about it, would they agree to the term?

Question 18

cases for business efficacy

Answer 18

. the Moorcock- defendant owns a wharf with a jetty on the Thames. they agreed to dock a ship and unload cargoes at the wharf. both parties were aware this could be low tide. court said this implied safe mooring.
. schawel v Reade- stallion for stud purposes. horse was unfit for stud purposes even though told it would be okay. implied it would be fit for a stud.

Question 19

what is the officious bystander test

Answer 19

something would be so obvious in the contract it wouldn’t be with making an explicit term

Question 20

case for officious bystander test

Answer 20

shell uk v Lostock- shell supplied petrol and oil to Lostock. said they will only product from shell. shell started to sell for lower price to others. Lostock tried to sue for losses as it would be obvious not to discriminate. this failed as shell wouldn’t have started a contract if this was the case.