Terms

Question 1

What are terms?

Answer 1

Things that the parties have agreed on

Question 2

What are the two types of terms?

Answer 2

Expressed - agreed explicitly by the parties
Implied - not specifically agreed to but are put into your contract by law

Question 3

What are the three types of implied terms?

Answer 3

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

Question 4

What are the three different types of terms?

Answer 4

-Condition
-Warranties
-Innominate

Question 5

What is a condition?

Answer 5

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

Question 6

What is a warranty?

Answer 6

A minor term that will result in loss but the main purpose of the contract will still be achieved (Bettini v Gye) - claiming damages

Question 7

What are innominate terms?

Answer 7

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

Question 8

What is the Consumer Rights Act 2015?

Answer 8

Applies to all contracts between consumers and traders/businesses, covers goods, services and mixed contracts

Question 9

What is a mixed contract?

Answer 9

A contract for both goods and services

Question 10

What is section 9 of CRA2015?

Answer 10

Goods must be of a satisfactory quality - considers reasonable person

Question 11

What is the defence for section 9 of CRA2015?

Answer 11

-fault is drawn to the consumers attention
-consumer examines which happened to revealed the fault
-sample of the goods given

Question 12

What is section 10 of the CRA2015?

Answer 12

Goods must be reasonably fit for purpose, the consumer must have relied on the reasonable skill and judgement of the trader (Baldry v Marshall)

Question 13

What is section 11 of CRA2015?

Answer 13

good must match the description, applied to goods on display and how goods are packaged (Moore & Co Ltd)

Question 14

What are the remedies for goods in CRA2015?

Answer 14

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

Question 15

What is the exclusion clause for good in CRA2015?

Answer 15

Can exclude clauses that are incorporated into the contract -
Section 31 - prohibits a term excluding S.9/10/11

Question 16

What is section 49 of CRA2015?

Answer 16

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

Question 17

What is section 52 of CRA2015?

Answer 17

performance of the service within a reasonable time

Question 18

What are remedies for services in CRA2015?

Answer 18

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

Question 19

What is the exclusion clause for services in CRA2015?

Answer 19

Can exclude clauses that are incorporated into the contract -
Section 57 - prohibits a term excluding S.49/52

Question 20

What is an exclusion clause?

Answer 20

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

Question 21

What are the three types of exclusion clauses?

Answer 21

-Signature/ticking box
-By reasonable notice
-Previous course of dealing

Question 22

What is the rule on signatures in exclusion clauses?

Answer 22

Bound by a signed contract (Curtis v Chemical Cleaning) held if the person verbally explains something different then that can be relied on

Question 23

What is the rule on reasonable notice in exclusion clauses?

Answer 23

Reasonable notice of the terms before the party enter the contract (Olley v Marlborough Court Hotel)

Question 24

What is the rule on previous course of dealing in exclusion clauses?

Answer 24

A presumption of the C being aware of any future terms due to consistent previous contracts (Hollier v Rambler Motors)

Question 25

What is the ‘red hand rule’ in exclusion clauses?

Answer 25

The more serious the effect of the exclusion clause, the more attention should be drawn to it

Question 26

What is section 65 of the CRA2015?

Answer 26

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

Question 27

What is the Unfair Contract Terms Act 1977?

Answer 27

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