terms

Question 1

what is an express term in a contract?

Answer 1

statements that are made by the parties where they intend to be bound.

Question 2

what are implied terms?

Answer 2

terms not communicated between parties but the law assumes they exists or decides they exists.

Question 3

what is considered when deciding if it is a term in the contract? (there are 5 things to consider)

Answer 3

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

Question 4

what is a term in a contract?

Answer 4

define the rights and obligations arising from the contract. (they are the contents of the contract)

Question 5

what is a mere puff?

Answer 5

a statement of no legal significance

Question 6

what is a representation? (is it binding)

Answer 6

statement of fact or law which induce the making of the contract which the parties do not intend to be binding

Question 7

what is a term? (is it binding)

Answer 7

statement of fact which the parties intend to be binding

Question 8

what is an untrue statement that is a representation?

Answer 8

misrepresentation

Question 9

can a statement be a term and a representation?

Answer 9

yes therefore, if you breach it you can claim for breach of contract AND misrepresentation

Question 10

what is the test/ question that needs to be asked to decide if a statement is a term or a representation?

Answer 10

objective test: ‘what would the reasonable person understand to be the intention of the parties, having regard to all the circumstances?’

Question 11

what should be considered when asking the importance of the statement?

Answer 11

statement is a term if it can be shown C considered the statement so important that it would not have entered into the contract but for that statement

Question 12

what should be considered when asking about timing of a statement to work out if it is a term?

Answer 12

if statement was made at the time of contracting

Question 13

what should be considered when taking into account the special knowledge of a skill to work out if a statement is a term?

Answer 13

statement is a term when one party who makes the statement has special knowledge or info compared to other party
eg, one party is an expert in cars and car dealer selling to a woman who has no clue on cars

Question 14

what should be considered when taking into account assumption of responsibility when determining if something is a term?

Answer 14

statement may be a term of contract when the vendor expressly accepts responsibility for the soundness of the sale item in question

Question 15

if a contract is signed are the parties assumed to have intended to be bound?

Answer 15

yes

Question 16

if a party does not understand or read the terms, are they bound by the terms in the contract?

Answer 16

yes - party can express an intention to be bound even if they do not understand or have read contract

Question 17

if the document signed was one which was intended to not have contractual effect - are the parties bound?

Answer 17

no, the terms within it will to form part of the contract as there is no intention to be bound

Question 18

what must a party do if they want to incorporate terms that are adverse to the other party?

Answer 18

when a clause is particularly onerous it needs to be ‘printed in red ink, with a red hand pointing to it, or something equally startling’.

Question 19

how can terms be incorporated by notice?

Answer 19

one party must notify the other party of the terms - terms will form part of contract is reasonable steps have been taken to bring them to C’s attention.

Question 20

what must a course of dealing be to allow it to be incorporated into the terms of a contract? (there are 2 things)

Answer 20

consistent + regular

Question 21

what two things should be considered when working out if a term is incorporated by notice?

Answer 21

the timing (reasonable notice given before or at time of contracting)
contractual effect (intended to have contractual effect)

Question 22

what must be proved for other ways of agreeing express terms to prove that the statement is a term of a contract?

Answer 22

parties adequately express an intention to be bound by those terms

Question 23

what is an entire agreement clause?

Answer 23

a clause that provides that a particular document or set of documents constitutes the entire agreement between the parties

Question 24

what are the two ways that an implied term can be?

Answer 24

implied in fact
implied in law

Question 25

what does it mean if a term is implied in fact?

Answer 25

terms which the parties intended to include but have failed to do so eg, on basis of customs or through course of dealing

Question 26

when implying terms in fact, what should one ask? (to establish if there is an implied term)

Answer 26

what the reasonable person would understand the contract to mean, rather than enquiring as to the subjective intentions of the parties

Question 27

what does it mean if a term is implied by law?

Answer 27

implied at common law (as a matter of policy, in certain relationships)
implied at statute law (indicate that they would have been implied)

Question 28

do implied terms by statute apply even if the parties didn’t intend?

Answer 28

yes, doesnt matter what the parties intended unless there is a valid exemption clause

Question 29

what type of contracts does the sale of goods act 1979 apply to?

Answer 29

business to business contracts

Question 30

what 5 things are implied in contracts via the sale of goods act 1979?

Answer 30

• seller has right to sell the goods
• goods comply with their description
• goods will be of satisfactory quality
• goods will be fit for a particular purpose
• goods will comply with any sample

Question 31

if the breach is slight (sale of goods act 1979) that it is unreasonable for buyer to reject the goods = what is the remedy?

Answer 31

should be treated as a breach of warranty - as the breach is so slight that it is unreasonable for buyer to reject the goods and repudiate the contract (only entitles the buyer the claim damages)

Question 32

who has the burden of proof in proving that a breach is so slight it is unreasonable for buyer to reject the goods?

Answer 32

the seller

Question 33

what types of contracts does the supply of goods and services act 1982 imply terms to? (there are 3 contracts)

Answer 33

transfer of property in goods
hire of goods
supply of services

Question 34

what is implied under supply of goods and services act 1982 for transfer of goods contracts? (there are 4)

Answer 34

• title
• description
• quality or fitness
• transfer by sample

Question 35

what is implied under supply of goods and services act 1982 for hire goods? (there are 4)

Answer 35

• right to transfer possession
• description
• quality or fitness
• transfer by sample

Question 36

what is implied under supply of goods and services act 1982 for contracts for the supply of services?

Answer 36

• supplier carries out service with reasonable care and skill
• carry out service within a reasonable time
• party contracting with supplier will pay a reasonable charge

Question 37

what type of contracts does the consumer rights act 2015 imply terms in?

Answer 37

consumer contracts for goods, digital content and services