Terms

Question 1

What is mere puff?

Answer 1

Statements of no legal significance.

Question 2

What are representations?

Answer 2

Statements which induce the making of the contract which the parties do not intend to be binding

Question 3

What are terms?

Answer 3

Statements of fact which the parties intend to be binding

Question 4

What is the test for whether a statement is made with the intention to be binding?

Answer 4

Objective - what would reasonable person understand intention of the parties to be having regard to all circumstances?

Question 5

When will the courts infer a statement to be intended to be binding?

Answer 5

Statement made during negotiations for purpose of inducing

Question 6

How can the inference of a statement having the intention to be bound be rebutted?

Answer 6

Reasonable person wouldnt hold them bound

Question 7

What is taken into account when deciding if a statement is a term or a representation?

Answer 7

• timing
• importance
• reduction into writing
• special knowledge/skill
• assumption of responsibility

Question 8

How do the courts approach importance of a statement?

Answer 8

so important that would not have entered into contract but for that statement

Question 9

How can an intention to be bound be shown in express terms?

Answer 9

• signed written contract
• Incorporation by notice
• Incorporation by course of dealing
• conversation or verbal exchange
• set out in writing and the other party agreeing

Question 10

What did L’Estrange v Graucob show regarding intention to be bound where terms are written into contract?

Answer 10

Can intend to be binding even if didn’t read/understand the terms

Question 11

What is the exception to there being an intention to be bound by signing a written contract?

Answer 11

• Document signed was not one intended to have contractual effect
• Party orally misrepresented meaning of the clause

Question 12

How can a term be taken as intended to be binding where there is incorporation by notice?

Answer 12

Took reasonable steps to bring to Claimant’s attention

Question 13

What was considered reasonable notice in Thompson v London, Midland & Scottish Railway?

Answer 13

reference to a different document

Question 14

What steps should be taken where a clause is particularly adverse to the other party?

Answer 14

must clearly bring these to the other party’s attention

Question 15

Can a clause be intended to be binding if notice is given after a contract is made?

Answer 15

NO

Question 16

What is the requirement of a document which is giving notice of terms?

Answer 16

Intended to have contractual effect

Question 17

How can terms be intended to be binding by course of dealing?

Answer 17

• consistent over period of time
• regular

Question 18

How can parties reduce the possibility of a claim that there was binding oral terms alongside the written terms?

Answer 18

Entire agreement clause

Question 19

What is an implied term?

Answer 19

inferred by the courts.

Question 20

What ways can terms be implied by the courts?

Answer 20

• by fact
• by common law
• by statute

Question 21

Will the courts imply a contrary term where parties have made an unambiguous express provision in their contract?

Answer 21

No

Question 22

How can terms be implied by fact?

Answer 22

• Trade or professional customs
• A course of dealing
• Business efficacy

Question 23

What are the requirements for a term to be implied for business efficacy?

Answer 23

Arrangement would otherwise be so unworkable that sensible people could not be supposed to have entered into it

Question 24

What are the key statutes that imply terms into contracts?

Answer 24

• Sale of Goods Act
• Consumer Rights Act
• Supply of Goods and Services act

Question 25

What does the sale of goods act not apply to?

Answer 25

consumer contracts as defined in the Consumer Rights Act

Question 26

What are the terms implied by the sale of goods act?

Answer 26

- Seller has title to sell - Correspondence with description - Satisfactory quality - Fitness for particular purpose - Sale by sample

Question 27

What is taken into account when assessing if goods are satisfactory quality?

Answer 27

a) Fitness for all the purposes for which goods of the kind in question are commonly supplied; b) Appearance and finish; c) Freedom from minor defects; d) Safety; and e) Durability

Question 28

What are the exceptions to goods being satisfactory quality?

Answer 28

- Defects specifically drawn to buyer's attention before contract - buyer examines before contract

Question 29

What are the requirements for an implied term of fitness for a particular purpose?

Answer 29

- Buyer makes known to seller a particular purpose for which goods being bought - implied term that reaosnably fit for that purpose - whether or not common purpose for those goods

Question 30

What is the exception where there is an implied term of fitness for a particular purpose?

Answer 30

circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the skill or judgment of the seller

Question 31

What are the implied terms where there is a sale by sample?

Answer 31

- bulk will correspond with the sample in quality - Goods free from defect which would not be apparent on reasonable inspection of the sample

Question 32

What is the effect of s15A sale of goods act which modifies the remedies?

Answer 32

if the breach is so slight that it would be unreasonable for the buyer to reject the goods and repudiate the contract, should be treated as a breach of warranty

Question 33

What is the remedy where a breach of condition is treated as a breach of warranty?

Answer 33

Buyer can only claim damages

Question 34

Who is the burden on to prove that a breach was so slight that it would be unreasonable for a buyer to reject the goods?

Answer 34

Seller

Question 35

Which sale of goods act implied term cannot be restricted or excluded?

Answer 35

Implied title

Question 36

Which sale of goods act implied term can be restricted or excluded and for what reason?

Answer 36

satisfactory quality/correspondence with description/fitness for particular purpose/sale by sample IF reasonable

Question 37

What are the terms implied by the supply of goods and services act for supply of services?

Answer 37

- reasonable care and skill - within reasonable time - Paying a reasonable charge (consideration)

Question 38

What are the terms implied by the Consumer Rights Act for goods?

Answer 38

- satisfactory quality - fit for any purpose consumer makes known to trader - match description

Question 39

What are the terms implied by the Consumer Rights Act for digital content?

Answer 39

- satisfactory quality - reasonably fit for purpose - match description

Question 40

What are the terms implied by the Consumer Rights Act for services?

Answer 40

- reasonable care and skill - reasonable price - reasonable time - anything said/written to consumer taken into account by consumer when: - deciding to enter contract - making decisions about service after entering contract

Question 41

What are the three remedies under the Consumer Rights Act for goods?

Answer 41

- short term right to reject - right to repair or replacement - right to a price reduction or final right to reject

Question 42

What will goods/services have to be in order to get the remedies under the Consumer Rights Act?

Answer 42

Non conforming

Question 43

When is the remedy of short term right to reject available?

Answer 43

30 days from: - ownership passed - goods delivered - notified consumer that required steps taken

Question 44

When is the remedy of repair or replacement available?

Answer 44

unless either impossible or disproportionate

Question 45

What is considered disproportionate for the purposes of the remedy of repair or replacement?

Answer 45

imposes unreasonable cost on the trader relative to other remedies and interests of consumer

Question 46

Is a consumer entitled to both a price reduction and final right to reject?

Answer 46

No

Question 47

When is the remedy of price reduction/final right to reject available?

Answer 47

- after one repair/replacement, goods dont conform - consumer can't require repair or replacement - required repair/replacement but trader not done so within reasonable time or without significant inconvenience to consumer

Question 48

What is the additional general rule for the remedy of price reduction/final right to reject?

Answer 48

Where exercised within 6 months, should be a full refund with no deduction for use

Question 49

What is the time limit for digital goods being considered non conforming?

Answer 49

6 months

Question 50

What are the remedies under the Consumer Rights Act for non conforming digital goods?

Answer 50

- repair or replacement - price reduction

Question 51

What are the requirements for repair and replacement of digital goods?

Answer 51

- within reasonable time - without significant inconvenience - not where impossible/disproportionate - nature/purpose of content material in judging reasonable time/significant inconvenience

Question 52

What are the requirements for price reduction of digital goods?

Answer 52

- consumer cannot require repair/replacement - trader failed to repair/replace within reasonable time/without significant inconvenience

Question 53

When should a refund be given for digital goods?

Answer 53

within 14 days

Question 54

What are the requirements for remedies where digital goods have caused damage to a device/other digital content?

Answer 54

a) Trader supplies digital content under contract b) Causes damage to device/other digital content c) Device/digital content belongs to consumer d) Damage would not have occurred if exercised reasonable care and skill

Question 55

What is the remedy where digital goods have caused damage to a device/other digital content?

Answer 55

repair or compensation

Question 56

When are services considered non-conforming under the Consumer Rights Act?

Answer 56

Breach reasonable care and skill

Question 57

What is the remedy available where services have not been performed in a reasonable time?

Answer 57

Price reduction

Question 58

What are the available remedies for non conforming services?

Answer 58

- repeat performace - price reduction

Question 59

What are the requirements where a consumer requires repeat performance of services?

Answer 59

- within reasonable time - without significant inconvenience to consumer - not if impossible

Question 60

When can a consumer claim a price reduction for services?

Answer 60

- repeat performance not available - trader failed to repeat within reasonable time/without significant inconvenience

Question 61

What is asked when considering if an innominate term is a condition or a warranty?

Answer 61

Does breach deprive party substantially of the whole benefit intended to obtain in the contract