Implied Terms

Question 1

what is an implied term?

Answer 1

terms that are put into a contract by the law - the parties may be unaware of these terms

Question 2

what is an express term?

Answer 2

terms that are in a contract that both parties are aware of and agreed to

Question 3

why do implied terms exist?

Answer 3

they help to create fairness as there may be things that parties forgot to add or specify in their contract. Additionally, it also helps prevent unequal bargaining powers between parties

Question 4

what 3 ways can implied terms be put into a contract?

Answer 4

-implied by custom trade/use (B2B)
-implied by judges or courts (B2B)
-implied by statute (B2C)

Question 5

what is a custom?

Answer 5

a custom is something that is usually done /traditional/expected in a contract

Question 6

what is the case for the trades standard contract should be implied?

Answer 6

British Crane Hire Corp v Ipswich Plant Hire

Question 7

what does British Crane Hire Corp v Ipswich Plant Hire say?

Answer 7

that a company’s usual standard contract should be implied in further contracts unless stated otherwise, as it was a term that is usually in these contracts

Question 8

what are the 2 ways that judges can decide to put terms into a contract?

Answer 8

-implied by fact
-implied by law

Question 9

what does implied by fact mean?

Answer 9

-where parties were probably intending that the situation was covered by a term, but didn’t explicitly say this
-Irwin v LCC
-Marks and Spencers v Paribas

Question 10

what does Marks and Spencers v Paribas say?

Answer 10

the courts said that to decide what the parties would have intended, we should look at what a reasonable person would have understood to be the intention of the parties in the circumstances

Question 11

what are the 2 tests for implied by fact?

Answer 11

-the business efficiency test
-the officious bystander test

Question 12

what is the business effeceincy test?

Answer 12

-where courts think that a term should be implied as the contract would not make sense without it
-The Moorcock

Question 13

what is the officious bystander test?

Answer 13

-the term is something the parties very obviously wanted in the contract

Question 14

what case sets out the officious bystander test?

Answer 14

Shirlaw v Southern Foundries

Question 15

what is implied by statute?

Answer 15

-Parliament have made sure that certain things are automatically in a contract by making terms that imply these things
-a lot of this law has been compressed into the Consumer Rights Act 2015

Question 16

what is the Consumer Rights Act 2015 (CRA)?

Answer 16

-the CRA is something that implied certain terms into all contracts for the sale of goods and services between consumers and traders
-Applies to only B2C contracts

Question 17

where is consumer defined?

Answer 17

section 2

Question 18

where is trader defined?

Answer 18

section 2

Question 19

what is a consumer defined as?

Answer 19

a party entering into a contract for the purposes wholly or mainly outside of the individuals work

Question 20

what is a trader defined as?

Answer 20

a person entering into a contract for purposes related to the individuals profession

Question 21

what does section 9 or CRA say?

Answer 21

-the right to satisfactory goods
-the standard that a reasonable person would consider satisfactory

Question 22

what 6 things are considered under s9 of CRA to deem something as satisfactory?

Answer 22

-price paid
-any description
-fit for purpose
-goods should be safe
-goods should be durable
-goods should be free from minor defects

Question 23

what is s10 of CRA?

Answer 23

-the right to have goods that are fit for purpose
-where the seller tells the buyer that the goods are fit for a specific purpose, theres an implied term that says that these goods must be fit for that purpose

Question 24

what is the case for s10 of CRA?

Answer 24

Baldry v Marshall

Question 25

what is s11 of SRA?

Answer 25

-the right to have goods as described
-there is an implied condition that where goods are sold by description, they will correspond with that description

Question 26

what is the case for s11 CRA?

Answer 26

Re Moore and co

Question 27

what are the 3 remedies for goods?

Answer 27

-s20 CRA: allows consumers to reject the goods and claim a full refund as long as it is within 30 days of purchase
-s23 CRA: either within or after 30 days the consumer can ask for the goods to be repaired or replaced
-s24 CRA: if the defect is still not fixed, the consumer can insist on either a reduction in price or end the contract and receive a refund (after 6 months it is less likely to get a full refund)