Implied Terms A03 2/4

Question 1

Sentence/Points

Answer 1

1. What need to do with harsh terms
2. Make excl clauses clear (H) get around
3. CRA small parties
4. Other examples of statutory term

Question 2

Point 1: Harsh Terms

Answer 2

• A01: Harsh or unusual terms must be brought to offeree’s attention or made prominent (Interfoto v Stiletto Productions)
• Protects both parties
• If they were free to contract without restrictions then it may lead to one party deliberately disguising or failing to mention a harsh term before acceptance
• Therefore this control is justified because it ensures particularly harsh terms are brought to the attention of the other side which discourages underhand dealing and encourages openness when forming contracts

Question 3

Point 2: Exclusion Clauses

Answer 3

• A01: Reasonable notice, Signature and Prev course of dealings
• The law states that all exclusion clauses should clear
• Stops terms being buried in lengthy contracts → Especially for online contracts where there is an option to ‘tick’ the T’c+C’s have been read and agreed
• Allows for parties in these situations to be protected from misleading or unclear limitation clauses.
• (H) Parties try to get around e.g. putting in small font in car parks

Question 4

Point 3: CRA

Answer 4

• The rights implied by CRA 2015 can’t be excluded by an expressed term in a contract
• Gives essential protection to smaller parties who have an inequality of bargaining power against shops and businesses
• Therefore CRA provides certainty and more protection which is a good enough justification for state interference

Question 5

Point 4: Other Stat Terms

Answer 5

• A01: Terms are implied via statute (Sale of Goods Act 1979, Supply of Goods and Services Act 1982 and CRA 2015)
• Imposes positive obligations on parties via statutes so they have to protect the consumer through a high standard
• The CRA provides wider protection for consumers that the contract may not have done, protecting weaker parties
• Parties can know the terms under a statute, and create their contract to abide by them. Instead of an implied term which only happens once a dispute has arisen

Question 6

Other Points

Answer 6

• Signature + Over-riding oral statement
• Provide reasonable notice + rule on ticket kept + read
• Contra proferentum
• Officious Bystander test

Question 7

Reforms

Answer 7

• Unwelcomed interference by the state into businesses contracts - maybe don’t interfere
• It’s reasonable for the courts to imply terms into a contract when there is a dispute, so it creates a just decision in the circumstance, and the courts are reluctant to do so anyways