Terms Flashcards
How to tell between a representation and a term of the contract?
- Importance of the statement.
- Timing of the statement.
- Reduction of the contract into writing.
- Special knowledge or skill of the person making the statement.
- Assumption of responsibility.
What are the 4 ways in which intention to be bound can be shown with an express term?
Signed written contract, incorporation by notice, incorporation by a course of dealing, other ways of agreeing express terms.
EXCEPTION to an express term within a signed written contract?
If the document signed was not one which was intended to have any contractual effect.
What is incorporation by notice? (for express terms)
If it was established that terms will form part of the contract if reasonable steps have been taken to bring them to the claimant’s attention before or at the time of contracting.
Terms will only be incorporated by notice if the document giving notice was intended to have ‘contractual effect’.
What is incorporation by a course of dealing?
Where a clause has been brought to the notice of the other party during previous dealings, it may be implied into the current transaction to give effect to the presumed intentions of the parties.
MUST BE CONSISTENT AND REGULAR.
What is an entire agreement clause?
Written agreement helps rule out the possibility of there being representations or terms agreed orally which form part of a contract.
What are the three ways in which terms can be implied in fact?
- Trade or professional customs.
- Business efficacy.
- Course of dealing between the parties.
What is business efficacy?
Where a term is implied that without the implied term, the arrangement would be so unworkable that sensible people could not be supposed to have entered into it. Something so obvious people would respond ‘oh, of course’
How can terms by implied in law?
At common law or statute.
Common law- as a matter of policy out of contractual relationships like landlord and tenant.
What are the main sections of the Sale of Goods Act 1979.
s12- right to sell goods.
s13- correspond with description.
s14(2)- satisfactory quality
s14(3)- fit for the purpose the purchaser has expressly or impliedly made known.
s15 bulk of goods must correspond with the sample.
what is the standard for satisfactory quality?
standard that a reasonable person would regard as satisfactory taking into account any description of the goods, the price and all other relevant circumstances.
What are the exceptions to s14(3)?
If it is shown that the buyer does not rely, or is unreasonable for him to rely, on the seller’s skill or judgement.
what are the exceptions to s14(2)?
If the defects were brought to the attention before the contract was made or if the buyer examines the goods before the contract is made, as regards defects which that examination ought to have revealed.
what does s15A state? (mofication for remedies for breach of condition)
If the breach is so slight that it would be unreasonable for the buyer to reject the goods and repudiate the contract, the breach should be treated as a breach of warranty= damages only.
What does the Supply of Goods and services act 1982 provide for the implications of terms in?
- certain contracts for the transfer of property in goods.
- contract for the hire of goods.
- contracts for the supply of services.
1 and 2 are effectively the same under SGA.
What implied terms are implied in SGSA 1982 for the supply of service.
a- care and skill.
b- carry out service within a reasonable time.
c- contracting party will pay the supplier a reasonable charge.
what are the different section within SGSA?
s2- title.
s3- description.
s4- quality or fitness.
s5- sample.
s7- right to transfer possession.
s8- hire is by description.
s9- hire is quality or fitness
s10- hire by sample.
What are the main rights under Consumer rights act 2015? for contracts for goods.
s9- goods should be of satisfactory quality.
s10- goods should be reasonably fit for any purpose which the consumer makes known to the trader that the consumer intends to use the goods for.
s11- goods should match description if it is given.
what are the main rights under consumer rights act 2015 for contracts for digital content?
s34- satisfactory quality.
s35- fit for purpose.
s36- match description.
what are the main rights under consumer rights act for contract for services?
s49- reasonable care and skill.
s51- reasonable price is to be paid.
s52- reasonable time.
what are the remedies for contracts for goods under the CRA 2015?
a- short term right to reject (30 days)
b- right to repair or replacement.
c- right t a price reduction or final right to reject.
what are the remedies for contracts digital content under the CRA 2015?
right to repair or replace (within a reasonable time and without significant inconvenience to the consumer)
right to a price reduction
what are the remedies for contracts for services under CRA 2015?
right to require repeat performance.
right to a price reduction.
how to distinguish between a condition and a warranty?
condition is an important term going to the root of the contract.
what is the new test for whether an inominate term is a condition?
if breach would it substancially deprive the party of the whole benefit that he was intended to recieve from the contract?
