Implied Terms Flashcards
- There are two ways in which terms can be incorporated in to a contract – Express and Implied.
Express terms are…
Implied terms are…
There are two ways in which terms can be incorporated in to a contract – Express and Implied.
Express Terms can either be written in to the contract, or stated verbally when the contract is made.
Express Terms concern matters such as price and what is expected for the price, or how the contract is to be performed.
IMPLIED terms are not specifically agreed, but can be implied into a contract by common law or by statute.
- Under Statute Law…
Section 9 states…
Under STATUTE LAW implied terms for the supply of GOODS and SERVICES are set out for ‘business (trader) to consumer’ contracts in the CONSUMER RIGHTS ACT 2015.
Section 9 states a right that the quality of the GOODS is satisfactory, and includes appearance, safety and fitness for the usual purpose. The right does not apply where a defect has been drawn to the consumer’s attention or the consumer has inspected goods.
- Section 10 states…
Section 10 states a right that the goods are fit for a particular purpose made known by the consumer to the trader. This can be Expressly Stated or Implied.
- Section 11 states…
Section 11 states a right that the goods supplied will match the description, including an implied description, for example when put on display.
- Section 13 states…
Section 13 states that goods must match a sample provided to the consumer, and any differences must be pointed out.
- Section 49 states a…
Section 49 states a right that the trader must perform any SERVICE with reasonable skill and care, and within a reasonable time.
- Section 50 states…
Section 50 states that anything written or said to the consumer by the trader is binding.
- Remedies for goods…
A Right to Full Rejection (refund) within 30 days of delivery under…
If the consumer does not want to exercise S.23 (or has, and is not satisfied), they can ask for…
Remedies for Goods:
A Right to Full Rejection (refund) within 30 days of delivery under S.20 and S.22, a partial rejection under S.21 (rejecting only part of the delivery that does not meet the standard expected), or repair or replacement under S.23.
If the consumer does not want to exercise S.23 (or has, and is not satisfied), they can ask for a price reduction or be given the final right to reject under S.24. Any refund issued will be reduced by a deduction for use.
- Remedies for Services:
A right to repeat performance under…
For S.55, repeat performance must happen within…
For S.56, this will only be an option if repeat performance is…
Here…
Remedies for Services:
A right to repeat performance under S.55, or a price reduction under S.56.
For S.55, repeat performance must happen within a reasonable time and without significant inconvenience to the customer. The trader must also bear any costs in doing so.
For S.56, this will only be an option if repeat performance is impossible, or repeat performance has been requested, and the trader does not perform it within a reasonable time.
Here… (Apply Everything Here)
- Under COMMON LAW there are 4 ways that terms can be implied into a contract…
Under the Business Efficacy Test…
Here…
Under COMMON LAW there are 4 ways that terms can be implied into a contract, in order to understand the deal the parties made. (Marks and Spencer v BNP).
Under the Business Efficacy Test (The Moorcock, Schawel v Reade, Marks and Spencer v BNP) the court will imply a term into a contract if the term is necessary to make the contract effective, and if the parties to the contract would have thought about it, would they have agreed that the suggested term was obviously going to be in the contract?
Here…
- Under the Officious Bystander Test…
Here…
Under the Officious Bystander Test (Shell v Lostock Garages) the court will imply a term into a contract on the basis that if both parties were asked by an officious (interfering) bystander, they would have agreed that such a term was needed.
Here [eg. it was an implied term that the goods would be delivered on time as the parties would agree that it was needed if asked by an officious bystander].
- [IF RELEVANT] The Court will imply a term into a contract if such a term was accepted as a matter of…
Here…
[IF RELEVANT] The Court will imply a term into a contract if such a term was accepted as a matter of custom/common business practices (Hutton v Warren).
- Here [eg. it was an implied term that the goods would be delivered on time as this was accepted under common business practices].
- [IF RELEVANT] The court will imply a term into a contract if such a term was used in…
Here…
[IF RELEVANT] The court will imply a term into a contract if such a term was used in previous dealings between the parties (Hillas v Arcos)
APPLY IF RELEVANT - Here…
