PFA 2 - Dispute Resolution Flashcards
How should you structure your submission?
- Introduction
- Signpost what your application is for + the rule the court needs to apply
- Go through the submissions
- Conclusion
How should you end your submission?
Short summary - explain why the court should exercise their discretion.
Conclusion - clear request for the order you want the judge to make.
What should you do if your client has a poor case?
Try to put forward the best arguable case you can based on the facts you have been given.
You may then want to look at your opponent’s argument + see if you can undermine those.
What is the effect of terms implied into a contract?
They will be equally as binding on the parties as if they had been expressly agreed between them
When does the Sale of Goods Act 1979 apply?
Whenever goods are sold
What terms does the Sale of Goods Act 1979 imply?
The following conditions:
i. that the seller has the right to sell the goods,
ii. that the goods match any description applied by the seller,
iii. that the goods are of satisfactory quality (fit for the purpose for which such goods are generally used)
iv. that the goods are fit for any special purpose to which the buyer tells the seller they will be put.
Can the terms implied by the Sale of Goods Act 1979 be excluded?
The condition of title cannot be excluded.
Whether the other implied conditions can be excluded by an express contract term depends on whether the exclusion was reasonable.
When does the Supply of Goods and Services Act 1982 apply?
Generally applies to contracts for services supplied by a business + to goods supplied in relation to the service.
What terms does the Supply of Goods and Services Act 1982 imply into a contract?
In relation to service contracts –> implies an innominate term that the supplier (if it is a business) will carry out the service in a reasonable time + with reasonable care and skill
In relation to the supply of goods, terms implied are similar to those implied under the Sale of Goods Act.
Can the terms implied by the Supply of Goods and Services Act 1982 be excluded?
A contract may exclude these implied terms only if it is reasonable
What does the Consumer Rights Act 2015 imply terms into?
Implies terms into sales contracts between a trader (a business) and a consumer.
What terms does the Consumer Rights Act 2015 imply into contracts?
Similar to those implied under the Supply of Goods Act (seller has title, goods comply with description, quality, and fitness for purposes).
In service contracts, the CRA implies that services should be:
i. carried out with reasonable care and skill,
ii. completed in accordance with any information which the consumer relies on (e.g., price quotations),
iii. completed for a reasonable price (if not expressly agreed), and
iv. completed within a reasonable time (if no timescale has been expressly agreed)
Can the terms implied by the CRA be excluded?
The terms implied by the CRA cannot be excluded or limited.
Exclusions or limitations relating to these terms are prohibited terms under the CRA and so will be void.
When will the court imply a term into a contract?
A court will generally not imply a term into a contract unless it is necessary to give the contract business efficacy.
I.e., if it is necessary to make the contract work the way the parties intended.
When might terms be implied into a contract by custom and usage?
If there is an industry or market standard for the field of business covered by the contract, terms may be implied based on custom + usage in that field.
- everyone in the industry or field assumes these terms apply.
