Private Law 5 Flashcards
What does “Battle of the Forms” imply?
Parties wish to join a contract with their own terms and conditions
What are the 2 cases which explain the “Battle of the Forms” ?
- Uniroyal Ltd v Miller & Co Ltd (steel hollow rolls).
Uniroyal placed an order and Miller delivered the steel hollow rolls, despite having conflicting terms in their contract.
- Continental Tyre & Rubber Co Ltd v Trunk Trailer Ltd (delivery note was signed).
The delivery note included an exclusion for breach of warranty, however the delivery note was too late.
What is the best approach when looking at “Battle of the Forms” ?
Butler Machine Tool Co v Ex-cell-o Corp
What are express terms of a contract?
Provision’s explicitly stated in a contract, outlining specific obligations, rights, and conditions agreed upon by the parties involved. These terms are clearly defined and written down, ensuring that all parties have a mutual understanding of their contractual duties and expectations.
What does an entire agreement clause mean?
Ensures that all terms and conditions of the agreement are contained within the written document, providing clarity and reducing disputes over what was agreed.
What does an arbitration clause mean?
A provision within a contract that requires the parties to resolve their disputes through arbitration rather than through litigation in court.
What does a jurisdiction clause mean?
A provision in a contract that specifies which court or legal system will have the authority to resolve any disputes arising out of the contract.
What does a force majeure mean?
A contractual provision that relieves parties from performing their obligations when certain extraordinary events or circumstances beyond their control occur, making performance impossible or impracticable.
What does a restrictive covenant mean?
A clause commonly found in contracts, particularly in employment agreements and real estate transactions. It imposes restrictions or obligations on one party to protect the interests of another party.
What does a liquidated damages or penalty clause mean?
A liquidated damages clause specifies a predetermined amount of money that one party will pay to the other in the event of a breach.
A penalty clause imposes a sum that is not a genuine pre-estimate of loss but rather a punishment for breaching the contract.
What does an exclusion clause mean?
A term in a contract that seeks to limit or exclude one party’s liability for certain breaches of the contract or specific types of loss or damage.
What are the 7 types of express term clauses?
- Entire agreement clause
- Arbitration clause
- Jurisdiction clause
- Force majeure clause
- Restrictive covenant
- Liquidate damages or penalty clause
- Exclusion clause
What if there is no express entire agreement clause?
The interpretation of the contract can become more complex e.g. Implied Terms.
What are the 3 approaches to interpretation?
- Literal approach - ‘Ordinary meaning of words’- what words are actually used?
- Common sense? (Commercially sensible construction) -
Interpretation away from absurd results - Contra proferentem - when interpreting an ambiguous term (for example) an exclusion clause, courts interpret it against the proferens (the party seeking to rely on the clause).
