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
