Terms Flashcards
What are terms?
Things that the parties have agreed on
What are the two types of terms?
Expressed - agreed explicitly by the parties
Implied - not specifically agreed to but are put into your contract by law
What are the three types of implied terms?
Custom - traditional, naturally implied (Hutton v Warren)
Fact - presuming what the parties intended using the reasonable man for business sense, then it will be implied (Marks and Spencer v BNP)
Statute - CRA 2015
What are the three different types of terms?
-Condition
-Warranties
-Innominate
What is a condition?
A term in a contract that is so important that a failure to perform it would destroy the main purpose of the contract (Poussard v Spiers & Pond) - repudiation and damages claimed
What is a warranty?
A minor term that will result in loss but the main purpose of the contract will still be achieved (Bettini v Gye) - claiming damages
What are innominate terms?
A term that is not clearly a condition/warranty, it depends on the consequences of the breach (Hong Kong Fir v Kawasaki) - if breach deprives of the whole benefit it is a condition
What is the Consumer Rights Act 2015?
Applies to all contracts between consumers and traders/businesses, covers goods, services and mixed contracts
What is a mixed contract?
A contract for both goods and services
What is section 9 of CRA2015?
Goods must be of a satisfactory quality - considers reasonable person
What is the defence for section 9 of CRA2015?
-fault is drawn to the consumers attention
-consumer examines which happened to revealed the fault
-sample of the goods given
What is section 10 of the CRA2015?
Goods must be reasonably fit for purpose, the consumer must have relied on the reasonable skill and judgement of the trader (Baldry v Marshall)
What is section 11 of CRA2015?
good must match the description, applied to goods on display and how goods are packaged (Moore & Co Ltd)
What are the remedies for goods in CRA2015?
Section 20 - short term right to reject within 30 days, payment within 14 days
Section 23 - the right to repair or replace in reasonable time without inconvenience
Section 24 - price reduction or final right to reject
What is the exclusion clause for good in CRA2015?
Can exclude clauses that are incorporated into the contract -
Section 31 - prohibits a term excluding S.9/10/11
What is section 49 of CRA2015?
Trader must perform the service with reasonable care and skill, standard of care from a reasonable person (Thake v Maurice) - if person is in that profession then held to the standard skill of the job
What is section 52 of CRA2015?
performance of the service within a reasonable time
What are remedies for services in CRA2015?
Section 55 - right to require repeat performance within a reasonable time and without significant inconvenience
Section 56 - right to a price reduction by an appropriate amount, or a full refund
What is the exclusion clause for services in CRA2015?
Can exclude clauses that are incorporated into the contract -
Section 57 - prohibits a term excluding S.49/52
What is an exclusion clause?
A clause that is put into the contract that tries to exclude or limit liability under the contract - must clear wording free from any ambiguity
What are the three types of exclusion clauses?
-Signature/ticking box
-By reasonable notice
-Previous course of dealing
What is the rule on signatures in exclusion clauses?
Bound by a signed contract (Curtis v Chemical Cleaning) held if the person verbally explains something different then that can be relied on
What is the rule on reasonable notice in exclusion clauses?
Reasonable notice of the terms before the party enter the contract (Olley v Marlborough Court Hotel)
What is the rule on previous course of dealing in exclusion clauses?
A presumption of the C being aware of any future terms due to consistent previous contracts (Hollier v Rambler Motors)
What is the ‘red hand rule’ in exclusion clauses?
The more serious the effect of the exclusion clause, the more attention should be drawn to it
What is section 65 of the CRA2015?
Unfair terms will not bind a consumer - a term that puts the consumer at a disadvantage by limiting their rights disproportionately increasing his obligations in comparison to other traders
What is the Unfair Contract Terms Act 1977?
between businesses:
-S.2(1) liability cannot be excluded for death/injury caused my negligence
-S.2(2) liability cannot be excluded for loss or damage by negligence
-S.3 imposes reasonable test of all circumstances for who inserts the clause
