Terms And Representations (not Qu On Own, Form Part Of One)

Question 1

What are terms?

Answer 1

Content of a contract
-Points actually agreed by the parties that form the contract

Question 2

What can occur if a term is breached?

Answer 2

The innocent party can bring a claim for breach of contract

Question 3

What are representations?

Answer 3

-other statements made during negotiations to persuade the other party to enter the contract
-Opinions and beliefs rather than knowledge
-Eg the views from the house are really nice in spring

Question 4

What can happen if a representation if breached?

Answer 4

Innocent party can only sue for misrepresentation not for a breach of contract

Question 5

What are 4 factors that the court will consider when deciding if a statement is a term or representation?

Answer 5

-The importance attached to the statement
-The special knowledge/skill of the person who made the statement
-The time lag between the statement and the final contract
-Whether the contract was put into writing and not just oral

Question 6

The importance attached to the statement explanation and case name

Answer 6

If the statement was very important to the claimant when they were deciding whether to enter the contract then the statement was probably a term of the contract
-Couchman v Hill

Question 7

Couchman v Hill 1947

Answer 7

-Auction catalogue said heifer (female cow) was unserved (not pregnant)
-Auctioneer and farmer confirmed it
-It was pregnant and died whilst calving
-Statement important to him, seen as term of contract

Question 8

The special knowledge/skill of the person who made the statement, explanation and case name

Answer 8

• If person making statement very knowledgable about subject then the statement probably a term
  -Oscar Chess v Williams 1957
  -Dick Bentley v Harold Smith Motors

Question 9

Oscar Chess v Williams 1957

Answer 9

Private seller of a car believed it to be a 1948 model but actually much older. Not expected to have same level of understanding as a dealer
Not seen as a term of the contract

Question 10

Dick Bentley v Harold Smith Motors

Answer 10

Car dealer said car had done 20,000 miles when it had actually done 100,000. Even tho not written in the contract it was taken to be a term of the contract

Question 11

The time lag between the statement and the final contract explanation and case

Answer 11

If a contract is finalised a long time after a statement is made and the statement was not repeated then the statement is likely to be a representation
-Routledge v Mackay

Question 12

Routledge v Mackay

Answer 12

The date of manufacture was misstated by 12 years. The time lad was 7 days so this was seen as a representation

Question 13

Whether the contract was put into writing explanation (no case)

Answer 13

Not all contracts are written down, eg shop purchases but if a contract is in writing then the court will think that any other statements made by the parties which were not included in the written contract are definitely a term of the contract

Question 14

What are the remedies for if a term is breached?

Answer 14

-Repudiation and damages if the term is a condition
-Only damages if the term is a warranty