representations + terms Flashcards
incorporation of express terms:
not all representations end up as terms of the contract
distinction between representations and terms:
- what was the intention of the parties?
- were the statements intended to raise expectations that the contract should uphold
- was there evidence of an intention by one or both parties that there should be a contractual liability in respect of the accuracy of the statementn
contract is in writing
- if in writing, then the statements within it are usually regarded as terms rather than misrepresentations
- statements that were made before the contract were seen as mere representations
- however the courts will still consider the intentions of the parties incase they wanted the contract in writing and partly oral
J Evans + Son Ltd v Andrea Mezario Ltd
a case where the court ruled that a third party (J Evans & Son Ltd) couldn’t enforce a contract because they weren’t intended to benefit from it. This case highlights the limits of third-party enforcement, a rule later modified by the **Contracts (Rights of Third Parties) Act 1999
->court held oral promise was incorporated in the contract;
-» to show that contractual terms may be evidenced partly in writing, partly orally + partly by conduct
entire agreement clauses
provides that the entirety of the agreement is in the written contract and there are no other terms
-> will generally prevent a party from attempting to rely on additional oral terms
-> however an entire agreement clause may not prevent the implication of terms
contract is signed
where a written agreement is signed, the parties to it are considered to be in agreement with everything it contains even if they have not read it
L’Estrange v Graucob
-» to show that a party is generally bound by the terms of a signed agreement, even if they have not read it
- L’Estrange v Graucob (1934) established that when a person signs a contract, they are bound by its terms, even if they haven’t read or understood them. In this case, L’Estrange signed a contract for a vending machine without reading the terms and couldn’t claim damages for a faulty machine because she was bound by the signed contract.
the importance of the statement
the greater the importance attached to a particular statement by one party, the more likely it is to be considered a term
-» therefore if the party would not have entered into the contract if the statement hadn’t been made, then the statement is highly likely to be considered a term
-> otherwise the contract would not be giving effect to the intentions of the partiesb
Bannerman v white
established that statements made during negotiations can become part of a contract if they are clearly identified as important terms. In this case, Bannerman told White he would only sell hops not treated with sulphur. When the hops were treated with sulphur, the court ruled in Bannerman’s favour, as the statement about sulphur was a key condition of the contract.
-> to show that the more important the pre-contractual statement, the more likely it will be considered the term of a contract
reliance on specialist knowledge and skill
where on party relies on a statement made with the specialist knowledge or skill of the other party in deciding whether or not to enter into a contract, then the statements may be considered to be a term of a contract
dick Bentley productions ltd v harold smith motors ltd
established that if one party makes a statement based on their expert knowledge, it’s treated as a term of the contract. In this case, the seller falsely claimed a car had only 20,000 miles. The court ruled in favour of the buyer for misrepresentation, as the seller was an expert
-> to establish that pre-contractual statement made by parties with specialist knowledge can be considered terms of the contract
the timing of the statement
where there is a significant lapse in time between the statement made and the formation of the contract, the courts are more likely to consider the statement as a representation rather than a term of a contract
[routledge v McKay]
the parol evidence rule
where a contract has been reduced to writing, extrinsic evidence in admissible to add to, vary or contradict its terms
exceptions to the basic rule
- ## if written agreement was not intended to be the whole contract on which the parties actually had agreed
