Implied Terms Flashcards
What are implied terms?
Terms put into contracts by courts in certain circumstances - not necessarily agreed to by the parties
Which 3 main ways can implied terms be put into contracts?
- implied through custom or trade usage
- implied by common law/fact
- implied by statute
What is meant by applying through custom/trade?
Where certain terms are usual in a type of contract, so apply even if not specifically stated
Why was the term implied in British Crane Hire Corp v Ipswich Plant Hire?
A trade association for crane hirers had a standard contract where any party hiring a crane should return it to the owner
What does it mean by implied by fact?
Where parties were probably intending the situation to be covered by a term, but did not specifically state it
What does Irwin v LCC show about implying by fact?
Unless both parties would agree to the term, it cannot be implied by fact
How do courts judge what the parties intended when implying by fact and what is the case for this?
M&S v Paribas - we should look at what a reasonable person would have understood to be the intention of the parties in the circumstances
What is the business efficacy test and what case illustrates it?
Where the contract would simply not work or make sense without the term and so it must have been the parties’ intention to include it
- Moorcock
What is the officious bystander test and what is the case to show this?
- Shirlaw v Southern Foundries
- if the term was to be suggested by an officious bystander, the parties would respond saying ‘oh, of course’, suggesting the term is important
How does the CRA define a consumer under S2?
A party entering a contract for purposes that are wholly or mainly outside the individual’s trade, business, craft or profession
How does S2 CRA define a trader (business)?
A person acting for purposes relating to that person’s trade, business, craft or profession
Which factors can the court use to decide if the standard would be considered satisfactory by the reasonable person, and what section is this under?
S9 - price paid, description, fit for purpose, safety, durability, free from minor defects
What does it mean by fitness for purpose (S10) and what is the case for this?
Where the buyer tells the seller that the goods are for a particular purpose, there is an implied term that the goods will be fit for that purpose
- Baldry v Marshall (wasn’t fit for purpose)
What does it mean by Description of goods and what is the section number and case?
S11 - the right to receive goods as they were described
- Re Moore and Co
What are the remedies for breach of S9, 10 and 11 CRA? (with section numbers)
S20 - allows consumers to reject goods and claim a full refund within 30 days of purchase
S23 - Within or after 30 days, consumer can ask for goods to be repaired or replaced if possible
S24 - If defect cannot be fixed, consumer can ask for a reduction in price or ask for a refund
