Terms Flashcards
What is a statement of representation?
A statement that may influence the party into entering the contract but will not form part of the contract or be legally binding.
Represents a preliminary assertion that does not hold legal weight in the contract itself.
What is an express term?
A term agreed by both parties that is verbal or written and will be legally binding on the parties.
Express terms are critical in defining the obligations of the parties involved.
What factors do judges consider when determining if a statement is a term or representation?
Factors include:
- Knowledge and skill of the person making the statement
- Importance of the statement to C
- Whether the statement is included in a written contract
- Time lapse between the statement and contract formation.
These factors help assess the intent and reliance placed on the statement.
How does the judge determine whether a statement is a term of the contract?
If the statements were the reason for entering the contract, they are more likely to be considered terms.
If there is a written contract, are statements that are not included in the contract likely to be considered terms?
No, if statements are not written within the contract, they are not likely to be considered terms.
What happens if there is a time lapse between the statements made and the formation of the contract?
If there is a time lapse between the statements made and the contract being formed, the statements are less likely to be considered terms of the contract.
What is a condition in a contract, and what happens if it is breached?
A condition is a term that is central to the contract. If it is breached, the contract cannot be performed, and the claimant (C) will be entitled to repudiate the contract, as established in Poussard v Spiers & Pond.
What is a warranty in a contract, and what remedy is available if it is breached?
A warranty is minor term to the contract and more of an inconvenience if breached so C will only be entitled to damages (Bettini)
What is an innominate term?
An innominate term is a term which has not yet been classified (decided), a judge will decide whether the term is a condition or warranty depending on the outcome of the breach (Hong Kong Shipping)
What happened in Hong Kong Shipping in relation to innominate terms?
For example, in Hong Kong Shipping the judge found the breach to only be a term as the ship was only unseaworthy less than 20% of the contract.
What is the significance of written notices in contractual agreements, and how was this applied in Chapleton v Barry UDC?
Written notices must be on documents of contractual significance that both parties recognize. In Chapleton v Barry UDC, the notice on the back of the ticket was not considered a contractual term because the ticket was merely a receipt, and a receipt is not typically expected to contain contractual terms.
