Implied terms Flashcards
Spurling v Bradshaw
Terms can be implied in the contract by a previous consistent course of dealing between the parties
Hutton v Warren
Terms can be implied in the contract by local custom or trade usage
The Moorcock
A term can be implied in the contract to reflect the presumed intention of the parties –> business efficacy test + officious bystander test
Schuler v Wickman
The use of the word ‘condition’ raises the presumption that it is used in the legal sense, but this may be rebutted from evidence of the contract as a whole
Hong Kong Fir v Kawasaki
Contractual undertakings which cannot be categorised as being conditions or warranties, are innominate. It is necessary to wait until the breach of contract has occurred to decide whether the innocent party should be allowed to terminate the contract. It will be able to do so, if the breach deprives him of substantially the whole benefit of the contract
L’Estrange v Graucob
Exemption clause in regrettably small print but legible –> valid incorporation by signature
Curtis v Chemical
The exemption clause will not be incorporated if the ffect of teh clause has been described inaccurately
Parker v South Eastern Railway
Incorporation by notice requires (1) a document contractual in nature (2) that the innocent party either knows of the clause or that the party relying on it has taken reasonable steps to bring it to the other’s notice before the contract is finalised
Monarch Airlines
clear words are needed to exclude liability for negligence, but if teh wording is clear the word ‘negligence’ need not be used
Photo productions
An exemption clause can cover a very serious or a deliberate breach of contract provided the clause is clearly worded
Adler v Dickson
An exemption clause in a contract cannot protect a third party, as the privity rule provides that only a party can rely on a clause in a contract. But see s. 1(6) 1999 Act
Robinson v Harman
expectation loss compensated through cost of cure
Ruxley Electronics v Forsyth
Expectation loss can be in the form of loss of amenity, when the expectation was a ‘consumer surplus’
Anglia Television v Reed
Instead of the expectation loss, the claimant can seek compensation of its wasted expenditure made in reliance on the contract including expenditure incurred before the parties entered into the contract
Addis v Gramophone
damages will not normally be awarded for distress or disappointment
Jarvis v Swan’s Tours
Damages for distress and disappointment can be awarded where the contract is to provide pleasure, entertainment, enjoyment or peace of mind
Farley v Skinner
Damages for non-pecuniary loss can be awarded also when the provision of pleasure is not the sole object of the contract
Hadley v Baxendale
Damages are not too remote if (1) arising naturally from the breach of contract or (2) they were in the reasonable contemplation of both parties at the time of conclusion of the contract, as the probable result of the breach
Balfour Beatty v Scottish Power
There is no general rule that contracting parties are presumed to have knowledge of all techniques in each other’s business practices
Victoria Laundry
1st limb Hadley v Baxendale –> imputed knowledge
2nd limb Hadley v Baxendale –> actual knowledge
The Heron II
reasonably foreseeable (tort remoteness test) is wider than ‘within the parties’ reasonable contemplation’ (remoteness in contract)
Parsons v Uttley
If a particular type of loss is within the parties contemplation, then all loss of that type is recoverable even if more serious than could be contemplated
British Westinghouse v Underground Electric
A claimant cannot recover damages for losses which he could have avoided by taking reasonable steps. If the claimant does take reasonable steps to mitigate, he can claim any expenses incurred by doing so even if his attempt is unsuccesful
Cutter v Powell
doctrine of complete performance (sailor case)
Planche v Colburn
Exception to the doctrine of complete performance: wrongful prevention of performance by the other party
Sumpter v Helges
Exemption to the doctrine of complete performance
