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Contract Law > Incoporation of Terms > Flashcards

Incoporation of Terms Flashcards

1
Q

Totality of evidence must be considered

A

Heilbut Symons and Co v Buckleton

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2
Q

Importance of pre-contractual statement, if statement is grounds of party contracting, it is a term, not representation (hops and sulphur)

A

Bannerman v White

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3
Q

Non-expert’s false representation not a term

A

Oscar Chess v Williams

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4
Q

Specialist’s false representation a term

A

Dick Bentley v Harold Smith Morots

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5
Q

If responsibility is assumed, it is an term (stop inspection of horse, give assuranes)

A

Schawel v Reade

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6
Q

If unclear whether responsibility has been assumed, it is a representation

A

Ecay v Godfrey

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7
Q

If statement is made with enough time for buyer to verify it, it is a time

A

Routledge v McKay

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8
Q

Term does not supply reduction of contract into writing

A

Inntrepeneur Pub v East Crown

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9
Q

Parole evidence rule: neither party can add to, vary or contradict terms in written agreement

A

Jacobs v Batavia

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10
Q

Exception to parole evidence rule: express oral assurance

A

Couchman v Hill

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11
Q

Exception to parole evidence rule: collateral contract (statement incorporated into a second contract)

A

City and Westminster Properties v Mudd

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12
Q

Damages can be claimed for breach of collateral contract

A

J Evans and Son v Andrea Merzanio

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13
Q

Incorporation by signature regardless of whether it is read

A

L’Estrange v Graucob

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14
Q

Signed document must have contractual effect, administrative document not enough

A

Grogen v Robin Meredith Plant Hire

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15
Q

Clause in signed document can be unincorporated if misrepresented by a party at signing

A

Curtis v Chemical Cleaning and Dyeing Co

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16
Q

Clause in signed document can be unincorporated if there is misunderstanding of its meaning through n fault of signee (glasses)

A

Saunders v Anglia BS

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17
Q

Incorporation by reasonable notice

A

Parker v South Eastern Railway Co

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18
Q

Notice must be give prior to incorporation of the contract

A

Thornton v Shoe Lane Parking

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19
Q

Terms must be contained or referred to in document intending to have contractual effect, ticket doesn’t count, but may be possible to infer through past business relationship

A

Chapelton v Barry UDC; British Crane Hire Co v Ipswich Plant Hire

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20
Q

Reasonable steps must be taken to bring notice to party’s attention; (purchase of timetable)

A

Parker v South Eastern Railway Co; Thompson v London, Midland and Scotland Railway Co

21
Q

The more onerous the clause, the more must be done to give reasonable notice (red hand)

A

Spurling v Bradshaw; Interfoto Picture Library v Stiletto Visual Program

22
Q

Incorporation through course of dealing: must be consistent (3 or 4 transactions per month); not enough for 3 or 4 per year

A

Henry Kendale and Sons v William Lillico and Sons; Hollier v Rambler Motors

23
Q

Term can be implied by custom; must be certain, well-known, reasonable and intended to have legal consequences (12,000 is 10,000 in Suffolk)

A

Smith v Wilson

24
Q

Terms implied by fact: business efficacy test

A

The Moorcock

25
Q

Terms implied by fact: officious bystander test

A

Shirlaw v Southern Foundries

26
Q

Lord Hoffman - fact must be reasonably understood and read in relevant background

A

Attorney-General of Belize v Belize Telecom

27
Q

Business efficacy test for fact, but need to answer Lord Hoffman’s question

A

The Reborn

28
Q

Business efficacy test and officious bystander test restated

A

Marks and Spencer v BNP Paribas (2016)

29
Q

Terms implied by law:

A

Liverpool CC v Irwin

30
Q

Terms implied by law: standard isn’t necessary, but what is reasonable and fair

A

Dyson LJ in Crossley v Faithful and Gould Holdings

31
Q

Terms Implied by statute

A

Saele of Goods Act 1979; Supply of Goods and Services Act 1982; Consumer Rights Act 2015

32
Q

Interpretation of terms: what is reasonable with all background knowledge of parties at time of contracting

A

Per Lord Hoffman in Investors Compensation Scheme v West Bromwich BS

33
Q

Interpretation of terms: background information is that relevant to the contract. Objective and contextual.

A

Lord Hoffman, Bank of Credit & Commerce International v Ali

34
Q

Interpretation: pre contractual terms excluded

A

Chartbrook v Persimmon Homes

35
Q

Interpretation: Give words natural or ordinary meaning, or if multiple, one making most commercial sense

A

Rainy Sky SA v Kookmin Bank

36
Q

Interpretation: help with words and syntax, but do not aid foolish party

A

Arnold v Britton

37
Q

Objective and contextual approach to interpretation confirmed by Lord Hodge

A

Woods v Capita Insurance Services

38
Q

Classification of terms: condition if at root of contract (remedy is damage or termination - repudiatory breach)

A

Lord Reid, Schuler v Wickman

39
Q

Classification of terms: warranty if not at root of contract (Sale of Good ACT 1979, they are collateral to main purpose of contract)

A

Bettini v Gye

40
Q

Classification of Innominate Term: if breach deprives innocent party of substantially the whole benefit of the contract, it is condition, if not, warranty. (Remedy dependent on seriousness of the breach)

A

Lord Diplock, Honk Kong Fir Shipping v Kawasaki

41
Q

Examples of innominate term: 1. sufficiently serious, 2. not sufficiently serious, 3. time clause as a condition

A
  1. The Mihalis Angelos
  2. The Hansa Nord
  3. Bunge Corporation v Tradax
42
Q

Construction of exemption clauses: Read narrowly

A

Wallis, Son and Wells v Pratt and Haynes

43
Q

Exclusion clauses read more narrowly than limitation clauses

A

Alisa Craig Fishing v Malvern Fishing

44
Q

Exclusion clause cannot exclude liability for providing used car, as contract stipulated new one

A

Andrew Bros v Singer

45
Q

Exclusion clause for car’s condition not applied as item did not qualify as car owing to damage

A

Karsales v Wallis

46
Q

Liability for fundamental breach can be excldued

A

Photo Productions v Securior Transport

47
Q

Liability for negligence can be excluded:

  1. If clause expressly exempts a person for negligence,
  2. If clause does not expressly exempt a person, court must consider if words are wide enough to cover negligence
  3. If words are wide enough, can head of damage be based on some other ground than negligence (Hollier v Rambler Motors)
A

Lord Morton in Canada Steamship

48
Q

Exclusion clauses in non-consumer contracts

A

Unfair Contract Terms Act 1977

49
Q

Exclusion clauses in consumer contracts

A

Consumer Rights Act 2015

Contract Law (6 decks)

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