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Law Paper 3 > Terms > Flashcards

Terms Flashcards

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1
Q

Types of terms

A

Terms are what the parties have agreed between themselves
Consequences of a breach depends on type of term breached

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2
Q

Whats a condition

A

Important term
If not complied with the contract can be repudiated

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3
Q

Case for condition

A

Poussard v Spiers

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4
Q

Whats a warranty

A

A minor term
If breached contract does not end
Damages can be claimed

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5
Q

Case for warranty

A

Bettini v Gye

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6
Q

Whats an innominate term

A

Unclear whether it is a condition or warranty
Judge decides this depending on the consequences of the breach

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7
Q

To decide innominate term

A

Substantial benefit
Intention of parties

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8
Q

Substantial benefit

A

If breach denies you of substantial benefit then it is a condition
If it does not it is a warranty

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9
Q

Case for substantial benefit

A

Hong Kong v Kowaski

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10
Q

Intention of the parties

A

Decision based on what is just

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11
Q

Case for intention of parties

A

Arnold v Britton

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12
Q

Terms implied by common law or statute

A

Consequences if terms are followed
Terms can be implied by common law or statute

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13
Q

Terms implied by common law

A

a) business efficiency
b) officious bystander test
c) by custom
d) prior dealings

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14
Q

Business efficiency/ officious bystander

A

Business efficiency- is the term necessary to make business sense?
Officious bystander- if the parties to contract had thought about it would they agreed the term should be in there

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15
Q

Case for business efficiency

A

The moorcock

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16
Q

Case for officious bystander

A

Hollier v Rambler

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17
Q

Terms implied by custom

A

Courts look at what was the norm course of action at the time the contract was made

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18
Q

Case for terms implied by custom

A

Hutton v Warren

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19
Q

Terms implied by prior dealings

A

Prior terms in a previous contract would be implied terms within next contract

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20
Q

Case for terms implied by prior dealings

A

Hillas v Arcos

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21
Q

Terms implied by statute

A

Business to business- sale of goods act 1979
Business to consumer- CRA2015

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22
Q

Business to consumer CRA2015

A

Rights are given to consumer and the trader has a duty

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23
Q

Define consumer

A

An individual acting for purposes wholly or mainly outside of their craft

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24
Q

Define trader

A

A person acting for purposes relating to that persons trade

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25
Q

Who does the act apply to

A

Contracts and noticed between consumers and traders
Traders liable when dealing through third party
First implied term is pre contractual info

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26
Q

Examples of pre contractual info

A

Total price of goods
Additional delivery charges
Time it will take to be delivered

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27
Q

Contracts for supply of goods

A

S9- right of satisfactory quality
S10- right of fitness for particular purpose
S11- goods must match description

28
Q

Section 9- right of satisfactory quality

A

S.9(2) - desc of goods, price
S.9(3) - includes state and condition
S.9(4) - above will not apply if
Defects are brought to attention
Consumer examines goods
Goods sold after inspection

29
Q

Section 10- right of fitness for particular purpose

A

When consumer lets trader know particular purpose

30
Q

Case for fitness for particular purpose

A

Grant v Australian Knitting Mills

31
Q

If purchaser has a sensitivity

A

D will not be liable if goods fit for usual purpose
If purchaser has a specialist need they need to make the trader aware
Griffiths v Peter

32
Q

Section 11- goods must match description

A

When a model or sample is seen or examined by consumer the good supplied must match the description

33
Q

Remedies for consumer (breach s9,10,11)

A

Short term right to reject (s.20)
Within 30 days

Right to repair or replace(s.23)
Within reasonable time

Right to price reduction(s.24)
Within 6 months

34
Q

Contracts for services

A

S.49- reasonable care and skill
S.52- reasonable time

35
Q

S.49- performed with reasonable care and skill

A

Thake v Maurice

36
Q

S.52- performed within reasonable time

A

Applies when
No time is specified and work is not completed
Work has taken longer than expected

37
Q

Remedies for breach of S49 or S52

A

Right to repeat performance (s.55)
Repeat service to meet standards within reasonable time and bear all costs

Right to price reduction (s.56)
Price reduced to appropriate amount
Could be a full refund

38
Q

Exclusion clauses

A

Exclude liability for breach of contract

39
Q

Limitation clauses

A

Set an upper limit on liability

40
Q

Common law controls of exclusion clauses

A

Must be properly incorporated
1. By signature
2. By notice
3. By previous dealings

41
Q

Case for incorporated by signature

A

L’Estrange v Graucob

42
Q

Query made before signing

A

Oral statement overrides written

43
Q

Case for query before signing

A

Curtis v Chemical

44
Q

Incorporation by notice

A

Notice before entering a contract

45
Q

Case for notice before contract

A

Thornton v Shoe Lane Parking

46
Q

If a term is harsh

A

Must be brought to attention of other party

47
Q

Case for if a term is harsh

A

Kaye v NU skin

48
Q

Tickets may incorporate terms if

A

It is reasonable to expect the back of the ticket will be checked

49
Q

Case for tickets

A

Chappelton v Barry Urban

50
Q

Terms will be incorporated if reasonable steps have been taken

A

Thompson v London

51
Q

Incorporation by previous dealings

A

Dealings must be consistent

52
Q

Case for previous dealings

A

McCutcheon v MacBrayne

53
Q

Contra Proferentum rule

A

When exclusion or limitation clause is unclear
Courts decide if D can rely on term
Words interpreted against person trying to use them

54
Q

Case for contra proferentum rule

A

White v John

55
Q

Statutory control of exclusion clauses

A

UCA1977- breaches between businesses
CRA2015- breaches between traders and consumers

56
Q

Exclusions and limitations made void by UCA1977

A

S.2(1) - cannot exclude liability for death or personal injury
S.2(2) - cannot exclude liability for negligence
S.6(1) - cannot insert a clause where the above do not apply

57
Q

The reasonable test s.3

A

Guidelines outlined in s.11
Party who inserts clause must show it is reasonable
Terms must be reasonable in light (smith v eric)

58
Q

S.11(2) factors to be considered

A

Bargaining power
Customer given an inducement to accept the term
Customer knew or ought to have known about term

59
Q

S.11(4) limitation clauses

A

Resources
Insurance

60
Q

Case for s11(4)

A

George v Finney

61
Q

CRA2015

A

S.31- sale of goods
S.57- supply or services
S.65- prohibitions
S.62- general fairness

62
Q

S.31- sale of good’s prohibitions

A

S.9- cant exclude goods be satisfactory
S.10- cant exclude goods be fit for purpose
S.11- cant exclude goods be as described

63
Q

S.57- supply of services prohibitions

A

S.49- must be performed with reasonable care and skill
S.51- reasonable price to be paid
S.52- must be performed within reasonable time

64
Q

S.65 prohibitions

A

Prohibits exclusion of liability for death or personal injury resulting from negligence

65
Q

S.62- general fairness

A

Unfair if it removes customers rights without good reason and without giving anything back

66
Q

S.62(4) defines unfair as

A

Terms which put the consumer at a disadvantage by causing a significant imbalance and detriment to the consumer

Law Paper 3 (7 decks)

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