Implied Terms And Expressed Terms Ao1 Flashcards
What is a term?
A term sets out the obligations on the parties under the agreeement
What is an implied term?
A term assumed by courts or in statute e.g consumer regulations
What is an express term?
A term laid out by the parties themselves
What is a representation?
A statement that has induced a party to contract (no liability attached)
What is a misrepresentation?
A false statement that has wrongly induced a party to contract
Guidelines distinguishing a express term from a representation
Importance of statement
Skill/Expertise of person
Timing of statement
Written
Bannerman v White
Sale of hops-asked if treated with sulfur B-said they had not-this was false so was a term (made no sense without)
Dick Bentley Production v Harold Smith
Car sold ‘well vetted’ with 20k miles. False, car had more. Held:statement was a term as he was an expert
Routledge v McKay
Motorbike sold-seller said made in 1942 just before contract, was in fact older. Held: a term
Terms implied by fact
Terms not laid down in the contract, but assumed both parties would have intended to include
M&S v BNP Paribas
SC laid out rules for implied terms
- Implied if without it, contract lacks commercial coherence
- Implied if necessary for business efficacy
- Must satisfy test for business necessity 2B 1C
Shirlaw v Southern Foundries
Implied term determined by officious bystander test. So obvious it goes without saying ‘oh of course!
Business efficacy test, and the case?
Term is implied if essential to make the contract function, and reflect parties intention
The Moorcock
The Moorcock
Water too shallow, boat damaged. Held:implied term that they could park without suffering damages.
Liverpool City Council v Irwin
Flat staircases were trashed and broken lifts. Contract did not include maintence of block as an express term. Court used officious bystander and was an implied
2 ways terms can be implied
Implied by fact
Implied by law (consumer rights)
Terms implied by law: the 2 acts
CRA 2015
Consumer Contracts Regulations 2013
Outline SADFART
Satisfactory quality
As
Described
Fit for purpose
A
Reasonable
Time
S9 CRA 2015
Satisfactory quality-not faulty or damaged. What a reasonable person would consider satisfactory
s10+11CRA 2015
s10-Fit for purpose
s11-As described
s20CRA 2015
s20-can reject goods that don’t meet SADFART for a full refund within 30 days
s23 CRA 2015 + what’s the 6 month presumption
Have to give retailer chance to repair or place after 30 days, if unsuccessful-refund or price reduction
Within 6 months=fault since purchase
After 6 month-burden on consumer to prove it was fault at time of delivery (6 year length to bring case)
s28 delivery
retailer responsible until arrival
right to terminate if failure to deliver over 30 days
s49-52 CRA 2015
Supply of services
s49-reasonable care taken
s50-binding information (reliance)
s51-reasonable price
s52-reasonable time
s56+57 CRA 2015
s55-repeat service
s56-price reduction (up to 100%, issued within 14 days of agreement of the refund)
s62 CRA 2015
Unfair contract terms e.g fees and charges in small print
