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Law Paper 3 > Terms > Flashcards

Terms Flashcards

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
Who does the act apply to
Contracts and noticed between consumers and traders Traders liable when dealing through third party First implied term is pre contractual info
26
Examples of pre contractual info
Total price of goods Additional delivery charges Time it will take to be delivered
27
Contracts for supply of goods
S9- right of satisfactory quality S10- right of fitness for particular purpose S11- goods must match description
28
Section 9- right of satisfactory quality
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
Section 10- right of fitness for particular purpose
When consumer lets trader know particular purpose
30
Case for fitness for particular purpose
Grant v Australian Knitting Mills
31
If purchaser has a sensitivity
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
Section 11- goods must match description
When a model or sample is seen or examined by consumer the good supplied must match the description
33
Remedies for consumer (breach s9,10,11)
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
Contracts for services
S.49- reasonable care and skill S.52- reasonable time
35
S.49- performed with reasonable care and skill
Thake v Maurice
36
S.52- performed within reasonable time
Applies when No time is specified and work is not completed Work has taken longer than expected
37
Remedies for breach of S49 or S52
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
Exclusion clauses
Exclude liability for breach of contract
39
Limitation clauses
Set an upper limit on liability
40
Common law controls of exclusion clauses
Must be properly incorporated 1. By signature 2. By notice 3. By previous dealings
41
Case for incorporated by signature
L’Estrange v Graucob
42
Query made before signing
Oral statement overrides written
43
Case for query before signing
Curtis v Chemical
44
Incorporation by notice
Notice before entering a contract
45
Case for notice before contract
Thornton v Shoe Lane Parking
46
If a term is harsh
Must be brought to attention of other party
47
Case for if a term is harsh
Kaye v NU skin
48
Tickets may incorporate terms if
It is reasonable to expect the back of the ticket will be checked
49
Case for tickets
Chappelton v Barry Urban
50
Terms will be incorporated if reasonable steps have been taken
Thompson v London
51
Incorporation by previous dealings
Dealings must be consistent
52
Case for previous dealings
McCutcheon v MacBrayne
53
Contra Proferentum rule
When exclusion or limitation clause is unclear Courts decide if D can rely on term Words interpreted against person trying to use them
54
Case for contra proferentum rule
White v John
55
Statutory control of exclusion clauses
UCA1977- breaches between businesses CRA2015- breaches between traders and consumers
56
Exclusions and limitations made void by UCA1977
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
The reasonable test s.3
Guidelines outlined in s.11 Party who inserts clause must show it is reasonable Terms must be reasonable in light (smith v eric)
58
S.11(2) factors to be considered
Bargaining power Customer given an inducement to accept the term Customer knew or ought to have known about term
59
S.11(4) limitation clauses
Resources Insurance
60
Case for s11(4)
George v Finney
61
CRA2015
S.31- sale of goods S.57- supply or services S.65- prohibitions S.62- general fairness
62
S.31- sale of good’s prohibitions
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
S.57- supply of services prohibitions
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
S.65 prohibitions
Prohibits exclusion of liability for death or personal injury resulting from negligence
65
S.62- general fairness
Unfair if it removes customers rights without good reason and without giving anything back
66
S.62(4) defines unfair as
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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