Implied terms

Question 0

Spurling v Bradshaw

Answer 0

Terms can be implied in the contract by a previous consistent course of dealing between the parties

Question 1

Hutton v Warren

Answer 1

Terms can be implied in the contract by local custom or trade usage

Question 2

The Moorcock

Answer 2

A term can be implied in the contract to reflect the presumed intention of the parties –> business efficacy test + officious bystander test

Question 3

Schuler v Wickman

Answer 3

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

Question 4

Hong Kong Fir v Kawasaki

Answer 4

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

Question 5

L’Estrange v Graucob

Answer 5

Exemption clause in regrettably small print but legible –> valid incorporation by signature

Question 6

Curtis v Chemical

Answer 6

The exemption clause will not be incorporated if the ffect of teh clause has been described inaccurately

Question 7

Parker v South Eastern Railway

Answer 7

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

Question 8

Monarch Airlines

Answer 8

clear words are needed to exclude liability for negligence, but if teh wording is clear the word ‘negligence’ need not be used

Question 9

Photo productions

Answer 9

An exemption clause can cover a very serious or a deliberate breach of contract provided the clause is clearly worded

Question 10

Adler v Dickson

Answer 10

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

Question 11

Robinson v Harman

Answer 11

expectation loss compensated through cost of cure

Question 12

Ruxley Electronics v Forsyth

Answer 12

Expectation loss can be in the form of loss of amenity, when the expectation was a ‘consumer surplus’

Question 13

Anglia Television v Reed

Answer 13

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

Question 14

Addis v Gramophone

Answer 14

damages will not normally be awarded for distress or disappointment

Question 15

Jarvis v Swan’s Tours

Answer 15

Damages for distress and disappointment can be awarded where the contract is to provide pleasure, entertainment, enjoyment or peace of mind

Question 16

Farley v Skinner

Answer 16

Damages for non-pecuniary loss can be awarded also when the provision of pleasure is not the sole object of the contract

Question 17

Hadley v Baxendale

Answer 17

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

Question 18

Balfour Beatty v Scottish Power

Answer 18

There is no general rule that contracting parties are presumed to have knowledge of all techniques in each other’s business practices

Question 19

Victoria Laundry

Answer 19

1st limb Hadley v Baxendale –> imputed knowledge

2nd limb Hadley v Baxendale –> actual knowledge

Question 20

The Heron II

Answer 20

reasonably foreseeable (tort remoteness test) is wider than ‘within the parties’ reasonable contemplation’ (remoteness in contract)

Question 21

Parsons v Uttley

Answer 21

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

Question 22

British Westinghouse v Underground Electric

Answer 22

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

Question 23

Cutter v Powell

Answer 23

doctrine of complete performance (sailor case)

Question 24

Planche v Colburn

Answer 24

Exception to the doctrine of complete performance: wrongful prevention of performance by the other party

Question 25

Sumpter v Helges

Answer 25

Exemption to the doctrine of complete performance