terms Flashcards
implied terms
terms not expressly agreed by parties but rad into a contract by varying sources
implied by custom (doesnt work if expressed terms) - hutton v warren - lease on farm brought to an end, claimed money inr espect of seeds and labour used on land - in industry its normal so customary
implied in law (in all contracts of that type/category) - liverpool CC v Irwin - LCC owned flats but didnt maintain it so tenants witheld rent - council stated never agreed to maintain flats only resp. for providing apartments - court held - implied in all tenancy agrees. that landlord = resp. for covering common areas
implied in fact - shell UK ltd v lostock garage LTD - only shell to provide fuel but found shell selling cheaper fuel to other garages, implied term in deal that wouldnt supply anoyone cheaper than them - officious bystander test - not obvious - term not implied
braganza v BP shipping and another - B = employed to fix engines on ship, went missing and company stated suicide (most likely went overboard) wife wanted insurance but clause = not payable if death due to suicide and company didnt deem it an accident - SC held - shouldnt imply term in a way that undermines contract
implied terms - implied by statute
B2B = sales of goods act 1979
s.13(1) SGA 1979
Where sold by description goods will correspond with the description
Harlingdon and leinster enterprises ltd v christopher hull fine art ltd - seller offered painting by famous artist but not acc - dependent on if party relied on it to buy it - no as only bought it because they liked it not artist
s.14(2) SGA 1979 goods in the course of a business, goods will be of satisfactory quality
Ashington piggeries v christoper hill - buyer indicated needed herring meals to turn into animal feed - fed to mink and killed by DMNA in meal - does it inc. exotic species? court = yes if not must exclude certain species - compensation given
S.14(3) SGA 1979 sells goods in the course of a business goods must be reasonably fit for that purpose.
MT hojgaard v FON - build windmills according to certain speculation and last 20 years - although built according to spec. couldnt last that amount of time
limiting liability v excluding
s.11 UCTA 1977 - never applies on its own, only relevant if section spcifically refers to it
term must be a fair and reasonable one to have been included having regard to the circumstancess known or ought to be known
photo production ltd v securior transport ltf - contract was for S to make leg. patrol visits to premises of PP - contract excludes securitors liability for any acts of its employees - include exemption of liability for fire unless solely negligence of employee
unfair terms - exclusion or restriction of liability for breach of contract
B2B contracts s.3(1) UCTA - whom it applies to - apply if signed a standard form contract - as likely to be a power imbalance between the two parties
st. albans city and district council v international computer ltd - made contract, then amended it, still a standard form contract as amendments = minor, must be substantial
If contract = amended likely that parties have similar bargaining power
exclusion of implied terms
not allowed in consumer contracts but in B2B
schedule 2 UCTA = 4 instances that might be taken into account in establishing if term = reasonabke ir not (s.11 doesnt state what reasonable is)
1. bargaining strength
2. inducement to agree to term
3. how practical is it
4. is it made specifically for them? indicates intention
goodlife foods ltd v hall fire protection limited - fire in factory with fire supression system but HF forgot to connect it and excluded libaility for negligence or malfunction - reasonable as other party = insurance so didnt need to include it
AGG ltd v logic resource ltd - sale of cathode ray tubes and exported to iran but sent wrong thing - T + C = if has to send back, need to pay - not practical as how can other party make sure getting right product
B2C contracts
s.61(3) CRA - consumer contracts only
s.61 (1) contract between trader (someone acting within their trade) and consumer (someone not acting in their craft, business or profession)
overy v paypal (europe) ltd - what if someone acting as business - ind set up paupall account partly providing business details - claimed he was business so treat like one
unfair contract terms
under s.62(4) applies on tis own , linked to good faith (honesty and loyalty0
schedule 2 = list of terms considered unfair
core terms
s.64 ‘main subject matter of contract’ - court excludes core terms and whether theyre unfair but must be ‘transparent and prominent’
supply of goods and services act 1982
s.3 SGSA 1982 ■ Where sold by description goods will correspond with the description
s.4(2) SGSA 1982 ■ Where the supplier sells goods in the course of a business there is an implied term the goods will be of satisfactory quality
s.4(5) SGSA 1982 ■ Where the supplier sells goods in the course of a business goods must be reasonably fit for that purpose.
s.13 SGSA 1982 ■ Where a supplier acts in the course of a business services must be carried out with reasonable care and skill
S.14 SGSA 1982 ■ Where a supplier is acting in the course of a business and no time limit is given services must be carried out in a reasonable time
s.15 SGSA 1982 ■ Where a supplier is acting in the course of a business and no price is given a reasonable price will be charged for services provided.
