terms Flashcards
what is an express term in a contract?
statements that are made by the parties where they intend to be bound.
what are implied terms?
terms not communicated between parties but the law assumes they exists or decides they exists.
what is considered when deciding if it is a term in the contract? (there are 5 things to consider)
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 is a term in a contract?
define the rights and obligations arising from the contract. (they are the contents of the contract)
what is a mere puff?
a statement of no legal significance
what is a representation? (is it binding)
statement of fact or law which induce the making of the contract which the parties do not intend to be binding
what is a term? (is it binding)
statement of fact which the parties intend to be binding
what is an untrue statement that is a representation?
misrepresentation
can a statement be a term and a representation?
yes therefore, if you breach it you can claim for breach of contract AND misrepresentation
what is the test/ question that needs to be asked to decide if a statement is a term or a representation?
objective test: ‘what would the reasonable person understand to be the intention of the parties, having regard to all the circumstances?’
what should be considered when asking the importance of the statement?
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
what should be considered when asking about timing of a statement to work out if it is a term?
if statement was made at the time of contracting
what should be considered when taking into account the special knowledge of a skill to work out if a statement is a term?
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
what should be considered when taking into account assumption of responsibility when determining if something is a term?
statement may be a term of contract when the vendor expressly accepts responsibility for the soundness of the sale item in question
if a contract is signed are the parties assumed to have intended to be bound?
yes
if a party does not understand or read the terms, are they bound by the terms in the contract?
yes - party can express an intention to be bound even if they do not understand or have read contract
if the document signed was one which was intended to not have contractual effect - are the parties bound?
no, the terms within it will to form part of the contract as there is no intention to be bound
what must a party do if they want to incorporate terms that are adverse to the other party?
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’.
how can terms be incorporated by notice?
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.
what must a course of dealing be to allow it to be incorporated into the terms of a contract? (there are 2 things)
consistent + regular
what two things should be considered when working out if a term is incorporated by notice?
the timing (reasonable notice given before or at time of contracting)
contractual effect (intended to have contractual effect)
what must be proved for other ways of agreeing express terms to prove that the statement is a term of a contract?
parties adequately express an intention to be bound by those terms
what is an entire agreement clause?
a clause that provides that a particular document or set of documents constitutes the entire agreement between the parties
what are the two ways that an implied term can be?
implied in fact
implied in law
what does it mean if a term is implied in fact?
terms which the parties intended to include but have failed to do so eg, on basis of customs or through course of dealing
when implying terms in fact, what should one ask? (to establish if there is an implied term)
what the reasonable person would understand the contract to mean, rather than enquiring as to the subjective intentions of the parties
what does it mean if a term is implied by law?
implied at common law (as a matter of policy, in certain relationships)
implied at statute law (indicate that they would have been implied)
do implied terms by statute apply even if the parties didn’t intend?
yes, doesnt matter what the parties intended unless there is a valid exemption clause
what type of contracts does the sale of goods act 1979 apply to?
business to business contracts
what 5 things are implied in contracts via the sale of goods act 1979?
- 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
if the breach is slight (sale of goods act 1979) that it is unreasonable for buyer to reject the goods = what is the remedy?
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)
who has the burden of proof in proving that a breach is so slight it is unreasonable for buyer to reject the goods?
the seller
what types of contracts does the supply of goods and services act 1982 imply terms to? (there are 3 contracts)
transfer of property in goods
hire of goods
supply of services
what is implied under supply of goods and services act 1982 for transfer of goods contracts? (there are 4)
- title
- description
- quality or fitness
- transfer by sample
what is implied under supply of goods and services act 1982 for hire goods? (there are 4)
- right to transfer possession
- description
- quality or fitness
- transfer by sample
what is implied under supply of goods and services act 1982 for contracts for the supply of services?
- 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
what type of contracts does the consumer rights act 2015 imply terms in?
consumer contracts for goods, digital content and services
