Lecture 6-Terms Flashcards
Categories
1.Terms
2.Representations
3.Mere puffs
Mere puffs
‘mere puffs’ have no legal effect – they are sales talk which no reasonable person would take literally.
Examples: Exaggerated marketing technique
Walker v Milner (1866)
Exception
Osborn v Hart (1871)
Port was described as being ‘superior old port’ – but it was bordering on undrinkable! – the words amounted to a contractual term- linked to the quality of the port. Court held that this went to the heart of the contract, contractual term that could be sued upon.
Difference between terms and representation
A representation is a statement of fact which is made in the course of contracting in order to induce the other party to enter into the contract.
It is connected with the contract BUT it does not form part of it
Legal consequences
if a term is broken then the remedy lies in breach of contract and you can claim an expectation measure (cover loss you have sustained) of damages – these put you in the position you would have been in had the contract been performed
If the statement is deemed to be a representation AND the representation turns out to be untrue, the remedy lies in misrepresentation
Determining intention
Timing
Importance
Special skill or knowledge
Verification
Timing
Routledge v McKay [1954] Lapse of time (A week)
The lapse of time between the making of the statement and the entering into the contract may be relevant – the longer the time, the less likely it is to be a term
Importance
Bannerman v White (1861)
Couchman v Hill [1947]
If it is made clear that the statement is so important to the recipient that they would not have contracted without it, the statement is likely to be a term
Special skill and knowledge
Dick Bentley v Harold Smith (Motors) [1965]
Where the representor has some special knowledge or skill (more likely to work out factual inaccuracies), the statement is more likely to be a term of the contract
No special knowledge
Oscar Chess v Williams [1957]
Williams was not a car expert (innocently relied on the registration document), Oscar Chess was (because of the business that they traded in) – the statement made was an innocent misrepresentation not a term
Verification
Ecay v Godfrey (1947)
Where a statement is made, but the party making the statement advises or tells the other party to verify that statement, then it will be a representation not a term
