Terms - Express and Implied Flashcards

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1
Q

What is a condition in a contract?

A

A term in a contract that is central to the contract

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2
Q

What is the case that defines a condition?

A

Poussard vs Spiers and Pond

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3
Q

What is the POL from Poussard vs Spiers and Pond?

A

As the lead role, her presence was central meaning it was a condition in the contract that she was at the rehersals

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4
Q

What is a warranty?

A

A minor term in a contract, breachof which does not end the contract but allows a claim for damages only

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5
Q

What is the case that defines a warranty?

A

Bettini vs Gye

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6
Q

What is the POL from Bettini vs Gye?

A

Didn’t attend 3 days of rehersals but was able to be replaced so it was a breach of warranty not condition

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7
Q

What is an innominate term?

A

A term in a contract that is not defined as a conditon or a warranty - it depends on the individual circumstances

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8
Q

What is the case that defines an innominate term?

A

Hong Kong Fir Shipping Co. Ltd vs Kawasaki Kisen Kaisha Ltd

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9
Q

What is the POL from Hong Kong Fir Shipping Co. Ltd vs Kawasaki Kisen Kaisha Ltd?

A

Ship was out of action for 18 weeks of a 2 year contract, unclear if a condition or a warranty

Held a warranty

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10
Q

What happens if a representation is untrue?

A

It will become a misrepresentation of contract

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11
Q

How do the courts define between a representation and a term?

A
  1. Importance attached to the representation
  2. Special knowledge or skill of the person making the statement
  3. Time lag between the statement and completion of the contract
  4. Whether there is a written contract
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12
Q

What is the case for the importance attached to the representation?

A

Couchman vs Hill

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13
Q

What is the POL from Couchman vs Hill?

A

The statement was clearly important to the purchaser of the animal so was held a term not a representation

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14
Q

What are the two cases for special knowledge or skill of the person making the statement?

A

Oscar Chess vs Williams
Dick Bentley vs Harold Smith Motors

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15
Q

What is the POL from Oscar Chess vs Williams?

A

Seller of a car believed it to be a 1948 model but it was older, held a representation not a term

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16
Q

What is the POL from Dick Bentley vs Harold Smith Motors?

A

Dealer stated the car had done 20k miles but it had actually done 100k - taken as a term not a mere statement

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17
Q

What is the case for the time leg between the statement and the contract?

A

Routledge vs Mackay

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18
Q

What is the POL from Routledge vs Mackay? (Time lag)

A

Time lag was 7 days but the actual date of manufacture was not seen as important so was held a representation not term

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19
Q

What is the case for whether there is a written contract?

A

Routledge vs Mackay

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20
Q

What is the POL from Routledge vs Mackay (Written contract)

A

Courts presume that everything that the parties wanted to include as a term of the contract is put in the written contract

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21
Q

What is the act for business-to-business contracts?

A

Sale of Goods and Services Act 1982
Sale of Goods Act 1979

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22
Q

What is the act for business-to-consumer contracts?

A

Consumer Rights Act 2015

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23
Q

How can terms be implied by common law?

A

Business efficacy
Officious bystander test
Custom or Prior dealings with the 2 parties

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24
Q

What are the 2 parts to the business efficacy test?

A
  1. Is the term necessary to make the contract effective
  2. If the parties to the contract had thought about it would they have agreed that the suggested term was obviously going to be in the contract
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25
Q

What are the 2 cases that can be used for business efficacy?

A

The Moorcock
Schawel vs Reade

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26
Q

What is the POL from The Moorcock?

A

The courts implied a term that the ship would be at a safe mooring that would not be damaged

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27
Q

What is the POL from Schawel vs Reade?

A

There was an implied term in the contract that the horse would be fit for stud

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28
Q

What case defines the Officious bystander test?

A

Shirlaw vs Southern Foundries Ltd

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29
Q

What is the POL from Shirlaw vs Southern Foundries Ltd?

A

The officious bystander test is where an implied term is so obvious that it goes without saying, and would be met with a common “Oh, of course!”

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30
Q

What is the case that says that terms can be implied if they were present in prior dealings between the parties?

A

Hollier vs Rambler Motors

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31
Q

What is the POL from Hollier vs Rambler Motors?

A

Not signing one document did not prevent the terms being included in the contract due to prior dealings between the 2 parties

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32
Q

What is the case that says that terms will not be implied if the party never would have agreed to them?

A

Shell UK Ltd vs Lostock Garage Ltd

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33
Q

What is the POL from Shell UK Ltd vs Lostock Garage Ltd?

A

Shell would have never agreed to such a term so they were not implied in the contract

34
Q

What case defines genuinely implied terms?

A

Egan vs Static Control Components (Europe) Ltd

35
Q

What is the POL from Egan vs Static Control Components (Europe) Ltd

A

Genuinely implied terms are what a reasonable person would have understood to be the intention of both parties in the context of the contract

36
Q

What case clarifies the law around reasonableness and implied terms?

A

Marks and Spencer plc vs BNP Paribas Securities Services Trust Company (Jersey) Ltd

37
Q

What is the POL from Marks and Spencer plc vs BNP Paribas Securities Services Trust Company (Jersey) Ltd?

A

Reasonableness should be judged objectively by what a notional reasonable person would have done in the position of the parties at the time at which they were contracting

38
Q

What is the case for terms implied by custom?

A

Hutton vs Warren

39
Q

What is the POL from Hutton vs Warren?

A

The court decided that the terms of the lease must be viewed in the light of the custom

40
Q

What is the case for terms implied by prior dealings between the parties?

A

Hillas vs Arcos

41
Q

What is the POL from Hillas vs Arcos?

A

While the option cause lacked specific detail, it was implied that it would be on the same terms as the previous contract

42
Q

What is Section 13 of the Sale of Goods Act 1979?

A

The goods must correspond to any description applied to them

43
Q

What is the case for Section 13 of the Sale of Goods Act 1979

A

Re Moore & Co

44
Q

What is the POL from Re Moore & Co?

A

Product was described to come in cartons 30 tins, but some came in cartons of 24 tins. The overall number of tins was correct but the product didn’t match the description which was held a breach of section 13

45
Q

What is Section 14 (2) of the Sale of Goods Act 1979?

A

The goods have to be of satisfactory quality

46
Q

What are the 4 points that outline ‘satisfactory quality’?

A
  1. Fit for all purposes intended
  2. Appearance and finish
  3. Freedom from minor defects
  4. Safety and durability
47
Q

When will Section 14 (2) not apply?

A

When the defects are brought to the buyers attention or they are so obvious the buyer should have noticed them

48
Q

What is Section 14 (3) of the Sale of Goods Act 1979?

A

The goods are fit for purpose

49
Q

When does Section 14 (3) apply?

A

If the buyer makes known to the seller any particular purpose for which goods are being bought regardless of whether or not that is a purpose for which the goods of that kind are commonly supplied

50
Q

What is the case for Section 14 (3) of the Sale of Goods Act 1979?

A

Baldry vs Marshall

51
Q

What is the POL from Baldry vs Marshall?

A

Buyer asked for a fast, flexible and easily-managed car that would be comfortable and suitable for ordinary-touring purposes - claimed the Bugatti car was not and the court agreed

52
Q

What are the terms in the Supply of Goods and Services Act 1982 said to be?

A

Not conditions, so will be treated as innominate terms

53
Q

What is Section 13 of the Supply of Goods and Services Act 1982?

A

The service will be carried out with reasonable care and skill

54
Q

What is the case for Section 13 of the Supply of Goods and Services Act 1982?

A

Thake vs Maurice

55
Q

What is the POL from Thake vs Maurice?

A

The surgeon carried out the operation to the standard of a competent surgeon so the term was met - reasonable care and skill

56
Q

What is Section 14 of the Supply of Goods and Services Act 1982?

A

The service will be carried out within a reasonable time

57
Q

What determines a reasonable time for Section 14?

A

The circumstances of the scenario

58
Q

What is Section 9 of the Consumer Rights Act 2015?

A

The quality of the goods have to be satisfactory

59
Q

What is satisfactory quality?

A

When a reasonable person would consider the quality satisfactory

60
Q

What does the description of satisfactory quality take into account?

A
  1. The description of the goods
  2. The price/consideration for the goods
  3. All other relevant circumstances
61
Q

When will Section 9 of the Consumer Rights Act 2015 not apply?

A
  1. When defects are brought to the consumer’s attention before the contract is made
  2. Where the consumer examines the goods before the contract is made
  3. Where the goods have been sold after inspection of a sample and the defect would have been apparent on a reasonable examination of the sample
62
Q

What is Section 10 of the Consumer Rights Act 2015?

A

The good has to be fit for a particular purpose

63
Q

What is Section 11 of the Consumer Rights Act 2015?

A

The goods must match the description given to them

64
Q

What is the additional provision around consumers seeing samples/models?

A

The goods supplied must match the model seen or examined by the consumer

65
Q

What are the remedies in addition to from the Consumer Rights Act 2015?

A

Normal contract remedies like damages and repudiation

66
Q

What are the additional remedies under the Consumer Rights Act 2015?

A

Short term right to reject (S.20)
Repair or replacement (S.23)
Price reduction or final right to reject (S.24)

67
Q

What is the time frame for the short term right to reject under Section 20 of the Consumer Rights Act 2015?

A

30 days
Less when the goods are perishable

68
Q

What are the provisions regarding cost and Section 20 of the Consumer Rights Act 2015?

A
  1. Trader must bear any reasonable cost of return
  2. Refund must be given within 14 days
  3. Refund must be given using the same means of payment
  4. There must not be a fee imposed on the consumer
69
Q

What are the provisions surrounding Section 23, the right to repair and replacement, of the Consumer Rights Act 2015?

A
  1. Must be completed within a reasonable time
  2. Without any significant inconvenience to the consumer
  3. Trader must bear any necessary costs in doing so
  4. Consumer cannot require the trader to repair or replace the goods if it would be impossible or disproportionate compared to other remedies
  5. The fault must have been present at the time of the original delivery
70
Q

What are the provisions to Section 24, right to a price reduction or a final right to reject, under the Consumer Rights Act 2015?

A
  1. Trader can only have 1 attempt a repair or replacement for the consumer to have this right
  2. Any refund is subject to a deduction for use
  3. During the first 6 months any deduction for use is, at present, limited to motor vehicles
71
Q

What are the implied rights for the supply of services under the Consumer Rights Act 2015?

A

Section 49 - The trader must perform the service with reasonable care and skill
Section 52 - The trader must perform the service within a reasonable time

72
Q

What are the remedies for the supply of services under the Consumer Rights Act 2015?

A

Section 55 - The right to require repeat performance
Section 56 - The right to a price reduction

73
Q

What are the provisions for Section 55, right for repeat performance, under the Consumer Rights Act 2015?

A
  1. Must be done in a reasonable time
  2. Without any significant inconvenience to the consumer
  3. Trader must bear any necessary costs in doing so
74
Q

What are the provisions for Section 56, right to a price reduction, under the Consumer Rights Act 2015?

A

The trader has to give an appropriate price reduction for his failure to perform the contract, could be up to a dull refund of the contract price

75
Q

What is Section 62 of the Consumer Rights Act 2015?

A

The terms of a contract have to be fair for the consumer
They don’t have to follow unfair terms
But they can if they want to

76
Q

What is the act for the sale of goods between businesses?

A

Sale of Goods Act 1979

77
Q

What is the act for the sale of goods between a business and a consumer?

A

Consumer Rights Act 2015

78
Q

What is the act for the sale of goods between consumers?

A

Sale of Goods Act 1979

79
Q

What is the act for the sale of goods and services between businesses?

A

Supply of Goods and Services Act 1982

80
Q

What is the act for the sale of goods and services between a business and a consumer?

A

Consumer Rights Act 2015

81
Q

What is the act for the sale of goods and services between consumers?

A

Supply of Goods and Services Act 1982