general contract terms Flashcards
what is the difference between terms and ‘mere representations’?
terms form part of a contract, mere representations are just statements of opinion/fact
what is a ‘mere puff/ trade puff’?
claims in advertisements that aren’t contractual
what are representations?
statements made before a contract which may or may not become a main term
what are the two types of terms?
express and implied
what are express terms?
matters that were discussed at the negotiation stage that are clearly written into a contract
what are the 4 tests used when it’s unclear if a term is express?
-How important was the representation?
-A party relies on the skill of the other making the representation
-Was the written agreement signed?
-A representation isn’t a term unless the parties are aware of it when making the contract
what are key cases on express terms?
-Birch v Paramount Estates Ltd - how important test, married couple bought a house on the basis it was going to be ‘as good as the show house’ (it wasn’t, they sued)
-Dick Bentley Productions Ltd v Harold Smith Ltd - relies on skill test, falsely stated the car had done 20,000 miles when it had done 100,000
-L’Estrange v Graucob - signed agreement test, L didn’t read exclusion term and signed, couldn’t sue
what are implied terms?
terms that haven’t been expressed or written in the contract
what are the 3 ways in which the law implies terms?
1-implied through custom
2-implied by fact
3-implied by statute
what is meant by ‘implied by custom’?
over a long period of time common practices will allow an actual and enforceable implied term
what is meant by ‘implied by fact’?
3 ways its incorporated into the contract:
-through common trade practices (specific to industry and how it operates)
-through ‘officious bystander’ test (has an OB been present at the time and suggested such a term?)
-to preserve business efficacy (effectiveness must be adhered to, and terms can be implied to allow this)
implication must be necessary
what came from Marks and Spencer v BNP Paribas?
supreme court laid down the common law of when they would imply terms:
-if its strictly necessary for business efficacy
-it’s not enough that both parties would have agreed had it been suggested
-whether without the term the contract would lack commercial or practical coherence
‘won’t be implied where it ‘lies uneasy’ with express terms
what is meant by ‘implied by statue’?
gov introduced statutory terms implied into contracts to balance the positions of consumer and business, where neither party can ignore them
what is the main act on implied terms by statue?
the Consumer Rights Act 2015
s9,10 and 11 for supply of goods
s49 and 52 for supply of services
what are conditions?
a term that’s fundamental for carrying out the purpose of the contract fully
breach gives the injured party the right to terminate the contract
