Terms and Representations

Question 0

Oscar Chess Ltd v Williams (1957)

Answer 0

Sale of car by private owner, owner described it as a 1948 model morris based on information from the log book, it was in fact a 1939 model, the intelligent bystander would see that the owner didn’t intend to bind himself to sell a 48 model car and if the owner was asked to pledge himself as to its age he would say that he could only rely on the log book, the same as anybody else.

Question 1

Heilbut, Symons & Co v Buckleton (1913)

Answer 1

Plaintiff asked local rubber merchant if he were bringing out a rubber company and if so, would it be good, merchant replied that it would be. Statements made at the time of sale can be proven to be warranties if they were so intended.

Question 2

Dick Bentley Production Ltd v Harold Smith (Motors) Ltd (1965)

Answer 2

Seller of a car said the car had only done 20,000 miles since a replacement engine and gearbox, as the seller owned a dealership he was seen to be an expert, and the representation was made for the purpose of encouraging a buyer to act upon it, so it can be inferred that the representation was intended to be a warranty.

Question 3

Esso Petroleum v Mardon (1976)

Answer 3

Negotiations for tenancy of a petrol station, an estimated sales figure was given, after this the position of the station was changed but no new figure was given, the figure was treated as a collateral warranty.

Question 4

L’Estrange v Graucob (1934)

Answer 4

Plaintiff signed an agreement to buy cigarette machine without reading it thoroughly, court held that a signature is binding even if the contents of the contract are unread, subject to limitations such as disability.

Question 5

Parker v South Eastern Railway Co (1876-77)

Answer 5

P left items in a railway cloakroom, on back of ticket and on placard in in the room was a clause excluding liability for valuable items. Court established an objective test for reasonable notice, you can be bound even if you haven’t seen the term if reasonable steps had been taken to ensure that it was read.

Question 6

Olley v Marlborough Court Hotel (1949)

Answer 6

Hotel stay was paid for in advance at reception, a notice in the room then excluded the hotel’s liability for property, this could not form part of the contract as the contract was made at reception when the stay was paid for.

Question 7

Chapleton v Barry UBC (1940)

Answer 7

Deckchair hire, payment was made to an inspector after the chair was taken, he would issue a receipt, a clause on the back excluded liability for personal injury, as the receipt was not given at the time that the chair was taken it could not be at the time of the contract and was not binding.

Question 8

Thornton v Shoe Lane Parking (1971)

Answer 8

Small print on the back of the ticket given by the machine excluded liability for personal injury, Lord Denning established the red hand test, because it was a clause very detrimental to an individual’s rights a lot of attention should be drawn to it, more than to a regular clause.

Question 9

Interfoto Picture Library v Stiletto Visual Programmes (1989)

Answer 9

There was a clause implementing a charge for late return of pictures on the delivery note, it was a very high charge, the red hand test was applied, more attention needed to be drawn to such a clause.

Question 10

O’Brien v MGN (2001)

Answer 10

Claimant thought that he had won scratchcard game, error meant multiple winners, company drew one name to win the money as per its terms and conditions, which were printed in the newspapers the game featured in, held: the rule wasn’t very unusual, enough attention had been drawn to it.

Question 11

McCutcheon v David MacBrayne Ltd (1964)

Answer 11

M shipped a car belonging to D, who had used the service multiple times before. A risk note should be signed before shipping with a liability exclusion clause, however D was not always asked to sign and had not seen the clause. Held: if two parties make a series of contracts with the same T&Cs, they can be inferred, but only if there is consistency.

Question 12

Hutton v Warren (1836)

Answer 12

Implied terms by custom, by custom of the country a tenant was bound to farm according to a certain course of husbandry for his whole tenancy and in quitting was entitled to an allowance for seed and labour on any arable land.

Question 13

The Moorcock (1889)

Answer 13

Boat stopped at wharf, was grounded at low tide and was damaged due to unsafe riverbed, held: honest business requires that people take some duty to prevent customers to coming to such damage or accept liability for such damage. Least cost avoider strategy should be taken.

Question 14

AG of Belize v Belize Telecom Ltd (2009)

Answer 14

Court does not aim to improve contracts, just aims to work out what the parties intended in order to make the contract work.

Question 15

Liverpool CC v Irwin (1976)

Answer 15

Tenants of council flats protested over conditions. Were there implied terms on behalf of the landlord? House of Lords stated  4 levels of implication of terms:
Gap Filling
Business Efficacy
Reasonableness
Necessity

Question 16

Scally v Southern Health and Social Services Board (1992)

Answer 16

Medics were entitled to a full pension if they’d contributed for 40 years, a scheme was introduced where they could contribute extra to “buy” extra years to receive the full pension. Not everyone was informed of this scheme. Reference was made to Liverpool CC v Irwin and a necessity test, the court held that there are different necessary terms for different types of contract.

Question 17

Crossley v Faithful & Gould Holdings (2004)

Answer 17

Rather than focusing on necessity, it is better to consider reasonableness, fairness and the balancing of competing policy considerations.