Terms Flashcards
what is the effect of a signed written contract if it is not read?
it still shows intention to be bound
when would you not be bound by a signed written contract?
- fraud or misrepresentation
- non est factum (signor thought they were signing something different through no fault of their own)
- document has no contractual effect (timesheets, invoices, receipts)
When are terms taken to be part of a contract by notice?
When reasonable steps have been taken to bring them to the claimant’s attention.
What are the requirements for terms to be incorporated by notice?
- Prominently displayed on the front of the document
- Accessible if referenced,
- cannot be obscured
- unusual terms need additional measures
unlikely to be incorporated by notice if it is on the back of a document alone
when must notice of a clause be given?
before or at the time the contract is made
When is a document giving notice considered to have ‘contractual effect’?
Only if it was intended to have contractual effect – receipts don’t count.
When is a term implied into the current transaction by course of dealing?
If there is a regular course of dealing over a consistent period of time
what terms can be implied in by course of dealing?
terms that give effect to the presumed intentions of the parties
What needs to be shown for incorporation by common knowledge/industry practice?
Evidence that both parties always operate on the basis of specific terms.
What are other ways to agree on express terms?
Verbal exchange or set out by writing.
When can terms be implied in fact?
- trade or professional customs
- course of dealing
- business efficacy
- Officious Bystander Test
what is the Officious Bystander Test
This is a term which, if suggested by an ‘officious bystander’ who was observing the process, the parties in negotiation would agree with wholeheartedly
When are terms implied in law
- common law
- statute
What happens if a party breaches a condition?
The innocent party has a right to treat the contract as repudiated and can also sue for damages.
What is the remedy if a aprty breaches a warranty?
The only remedy available to the innocent party is to sue for damages; there is no right to treat the contract as repudiated.
How do you distinguish between conditions and warranties?
By determining if the breach goes to the root of the contract and if the parties intended at the time of contracting that breach of the term could result in the innocent party terminating. (Poussard v Spiers)
What are innominate terms?
Terms where you need to ask if the breach deprives the party of substantially the whole benefit which it was intended that they should obtain from the contract.
SGA - terms
- the seller has the right to sell
- must match description
- must be o satisfactory quality (what would a reasonable person say, taking into account fitness for purpose, appearance, freedom from minor defects, safety, durability)
- fitness for purpose
- must match sample
How are the terms implied by SGA categorised
breach is a category UNLESS the breach is so slight that it would be unreasonable to reject the goods.
What can you get if there has been a breach of the terms implied by SGA
the right to terminate the contract, return and refund the goods (unless it was being treated as a warranty - then damages only)
Terms implied by SGSA for transfer of goods
- match description
- good quality and fitness for purpose
-match the sample
Terms implied by SGSA for hire of goods
- title
- descirption
- quality and fitness for purpose
- match sample
Terms implied by SGSA for services
- reasonable care and skill
- reasonable time to carry out the contract
- reasonable charge
How are the terms implied by SGSA categorised?
Innominate
What are the terms implied into a contract for goods by CRA? (b-c)
- satisfactory quality
- fit for purpose
- match desciprtion
What happens if there is a breach of a term implied in by CRA in relation to goods
- short term right to reject from 30 days
- right to repair or replace unless this is impossible or disproportionate
- if the final right to reject is issued within 6 months, there will be a full refund.
NB: not entitled to both price reduction and
What are the terms implied into a contract for digital content by CRA?
- satisfactory quality (reaosnable person_
fit for purpose - match description
What are the remedies available if there is a breach of a term implied into CRA in relation to digital content?
- right to repair or replace is available for the first 6 months.
- there is also a right to a price reduction. This is only possible if the trader can’t repair or replace. A full refund is possible if this right is exercised within 14 days
What are the terms implied into a contract for services by the CRA?
- reasonable care and skill
- reaosnable price
- service carried out within a reasonable time
what are the remedies for a breach of an implied term in relation to services under the CRA
- repeat performance within a reasonable time
- price reduction is only available if repeat performance is impossible or unreasonable.
