terms

Question 1

What are terms?

Answer 1

• contents of the contract
• can be expressed or implied

Question 2

What are the 3 categories of negotiation statements?

Answer 2

1- mere puffs
2- representations ments parties don’t intend to be binding)
3- terms (statements parties do intend to be binding

Question 3

How can you decide if a statement is intended to be binding to determine if a statement is a representation or term?

Answer 3

Court applies objective reasonable test to see if parties intended.
- ‘What would a reasonable person understand to be the intention of the parties, having regard to all the circumstances?’

Question 4

What do the courts consider to see if the statement was a term or representation?

Answer 4

• importance of statement
• timing of statement
• reduction of contract into writing
• special knowledge or skill of person making statement
• assumption of responsibility

if yes to the above, then statement is contract term

Question 5

How does the timing of a statement determine whether it’s a term or representation?

Answer 5

If statement was made at time of contracting, then more likely to be a term than if it was made with delay

Question 6

What are the different ways which may determine the ‘intention to be bound’ by the parties?

Answer 6

• a signed written contract
• incorporation by notice
• incorporation by course of dealing
• other ways of agreeing express terms

Question 7

What are the 2 rules of a signed written contract?

Answer 7

• party can still intend to be bound by contract if signed without reading it.
• documents signed which were not intended to have any contractual effect are not binding.

Question 8

What is meant by ‘incorporation by notice’ for parties to be bound?

Answer 8

• terms will form part of the contract if reasonable steps have been taken to bring them to claimant’s attention.
• This is logical, where reasonable steps have been taken to draw terms to party’s attention, that party’s persistence with the transaction suggests intention to be bound by terms.

Question 9

When must a contract term be given notice of for it to be incorporated into a contract?

Answer 9

for a notice of it must be given before or at the time of contracting.

Question 10

What is meant by incorporation over a course of dealing?

Answer 10

Contractual terms from previous dealings between parties may be implied into new contracts, for this, must be shown that the course of dealing has been consistent over a period of time.
- it must be consistent and regular

Question 11

What is meant by ‘other ways of agreeing express terms’?

Answer 11

the terms of a contract can be arrived in many other ways, provided that the parties adequately express an intention to be bound by those terms.

Question 12

What is an entire agreement clause?

Answer 12

provides that a particular document or set of documents constitutes the entire agreement between the
parties.
- effective in avoiding confusion about whether any oral terms or preceding written statements form part of the contract.

Question 13

why may a term be implied in fact or in law?

Answer 13

fact= to give effect to the presumed but unexpressed intentions of the parties.
law= because courts or statute require this, regardless of the intention of the parties.

Question 14

What are the three types of implied terms in fact?

Answer 14

1- trade or professional customs
2- business efficiency
3- course of dealing between parties

Question 15

What is meant by trade or professional customs implied term?

Answer 15

implication is based on the assumption that it was the intention of the parties to be bound by well known customs of a particular trade

Question 16

What is meant by ‘course of dealing between parties’ as an implied term?

Answer 16

• may be implied into agreement where parties have dealt with each other on many occasions
• term will only be implied in these circumstances where the dealings of the parties have followed a consistent and regular pattern

Question 17

What is meant by business efficiency implied term?

Answer 17

to make the contract produce its intended objective.
- A term will only be implied on this ground if, without the implied term, the arrangement would be so unworkable that sensible people could not be supposed to have entered into it.

Question 18

How may a term be implied by law?

Answer 18

via common law or statute

Question 19

How are terms implied at common law?

Answer 19

To give effect to legal duties which arise, as a matter of policy, out of certain common types of contractual relationships, e.g. tenant and landlord

Question 20

How are terms implied by statute, which acts?

Answer 20

Mostly found in of Goods Act 1979, the Consumer Rights Act 2015 and Supply of Goods and Services Act 1982.

Question 21

What are the key sections of SGA?

Answer 21

• seller has right to sell
• corresponds with description
• satisfactory quality
• fit for purpose
• sale by sample
• ## Modification of remedies for breach of condition

Question 22

What is meant by s15 Modification of remedies for breach of condition?

Answer 22

Although breaches of the sections mentioned in card 21 are conditions, they’re subject to s15 A.
- If breach is so slightly, breach to be treated as breach of warranty.

Question 23

What are the terms implied by Supply of Goods and Services Act?

Answer 23

• contracts for transfer of property in goods (ownership)
• contracts for hire of goods (A owns goods, B has possession)
• contracts for supply of services

Question 24

What is the meaning of ‘contracts for supply of services’ in SGSA?

Answer 24

implies
- care and skill= supplier’s service is carried with care and skill
- time of performance= where time is not fixed, supplier will carry out service within reasonable time
- consideration= Where consideration not determined in contract, party receiving service pays reasonable charge.

Question 25

What 3 parts does category 1 of CRA cover?

Answer 25

1- contracts for goods
2- contracts for digital contents
3- contracts for services

Question 26

What are the 3 implied terms for contracts for goods and contracts for digital contents in CRA?

Answer 26

1- goods should be of satisfactory quality
2- goods should be fit for any purpose consumer tells trader of
3- goods should match description

Question 27

What are the 3 implied terms for contracts for services in CRA?

Answer 27

1- service performed with reasonable care and skill
2- reasonable price to be paid (where not already agreed)
3- service provided within reasonable time

Question 28

What are the remedies for breach of contracts for goods under CRA?

Answer 28

• short term right to reject (30 days)
• right to repair or replace
• right to price reduction or final rejection (not available before considering repair/replace)

Question 29

What are the remedies for breach of contracts for digital contents under CRA?

Answer 29

• right to repair / replace
• right to price reduction (refund within 14 days via same payment method)
  ** within period of 6 months

Question 30

What is the legal position if non-compliant digital good damages device or other content?

Answer 30

where (a) trader supplies digital content to consumer under a contract, (b) digital content causes damage to a device or to other digital content, (c) the device or digital content that is damaged belongs to consumer, and (d) damage is of a kind that would not have occurred if trader had exercised reasonable care and skill, then the consumer is entitled to repair or to a compensatory payment.

Question 31

What are the remedies for breach of contract of service under CRA?

Answer 31

• right to require repeat performance; and
• right to price reduction

Question 32

How can warranties and conditions be distinguished?

Answer 32

if parties intended, at the time of contracting, that any breach of the relevant term could result in the innocent party terminating.
**if yes, then condition

Question 33

Define innominate terms and name the leading case

Answer 33

Terms which are neither conditions or warranties.
Hong Kong shipping v Kisen 1962

Question 34

How are innominate terms distinguished as a condition or warranty?

Answer 34

1- Does statute define this term as condition or warranty
2- What did the parties intend for term to be?
3- any previous judicial decisions determining term?

4- If non of above apply, Hong Kong test applies:
- Does the breach deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract?
**if yes, then a condition

Question 35

What is the term classification of the statutory implied terms for SGA & SGSA?

Answer 35

SGA- s12-15 = conditions
SGSA- s13 = innominate terms
for CRA see remedies deck

Question 36

Can the time taken for performance or completion breach a contract?

Answer 36

yes
- where time is of essence, it can amount to repudiatory breach
- where time is not of essence, can become so by innocent party serving notice.