expressed and implied terms Flashcards
how can clauses be put into a contract
. either expressing it or making it clear
. implied into the contract
types of terms
a contract, a warranty, innominate terms
what is a condition?
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.
a case for conditions
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.
what is a warranty
a minor term in the contract. only damages can be claimed, cannot repudiate.
case for a warranty
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.
what are innominate terms
not clearly a condition or warranty- looks at the consequences to decide.
case for innominate terms
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.
factors to find out if it is a representation or a term
. 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
case for the importance attached to the statement.
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.
cases for special knowledge of the person
. 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.
case for time lag
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
case for a written contract
Routledge v MacKay- the court tends to presume that everything the parties wanted in the contract would be included in writing.
the 2 ways terms can be implied
. common law
. statute
what is statutory implied terms
it can be seen in acts whether it was business to business or business to consumer, such as the consumer rights acts.
2 ways in which terms can be applied in common law
. through business efficacy and the officious bystander test
. by custom or prior dealings between parties
what is business efficacy and officious bystander test
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?
cases for business efficacy
.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.
what is the officious bystander test
something would be so obvious in the contract it wouldn’t be with making an explicit term
case for officious bystander test
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.
what are terms implied by customs
a lot of English law is found in customs.
case for terms implied by customs
Hutton v warren- terms can be implied by customs in terms of the lease
what are terms implied by prior dealings
this is done through have the parties may have indicated terms in other contracts.
case for prior dealings
hillas v arcos- contract drawn up in 1931 with optional clauses, letting the customer buy a further 100,000 lengths of timber in 1932. it was very vague. defendant refused to deliver the timber. it was implied that it would be on the same terms as the last contract.
what are terms implied my statute
business- to- business contract. sales of goods act 1979 and consumer rights act 2015
important sections for the sales of goods act 1979
section 13- description
section (Beale v Taylor- car welded with different parts)
14(2)- satisfactory quality
14(3)- fit for purpose
supply of goods and service section numbers
section 13- done with care and skill
section 14- done in reasonable time
implied rights under the consumer rights act 2015
brings together rights and remedies available to consumers. reforms the sales of goods act 1979 and the supply of goods and services.
key sections for the consumer rights act 2015 regarding goods
section 9- satisfactory quality
section 10- fit for purpose
section 11- accurate to description
remedies for the sale of goods
s20- right to reject within a short time
s23- right to replacement
s24- right to a price reduction
key cases for the supply of services in the CRA 2015
s49- must be done with reasonable care and skill
s52- done in reasonable time
remedies if supply of goods is inadequate
right to a repeat performance
s56-right to a price reduction
