Terms - Express and Implied Flashcards
What is a condition in a contract?
A term in a contract that is central to the contract
What is the case that defines a condition?
Poussard vs Spiers and Pond
What is the POL from Poussard vs Spiers and Pond?
As the lead role, her presence was central meaning it was a condition in the contract that she was at the rehersals
What is a warranty?
A minor term in a contract, breachof which does not end the contract but allows a claim for damages only
What is the case that defines a warranty?
Bettini vs Gye
What is the POL from Bettini vs Gye?
Didn’t attend 3 days of rehersals but was able to be replaced so it was a breach of warranty not condition
What is an innominate term?
A term in a contract that is not defined as a conditon or a warranty - it depends on the individual circumstances
What is the case that defines an innominate term?
Hong Kong Fir Shipping Co. Ltd vs Kawasaki Kisen Kaisha Ltd
What is the POL from Hong Kong Fir Shipping Co. Ltd vs Kawasaki Kisen Kaisha Ltd?
Ship was out of action for 18 weeks of a 2 year contract, unclear if a condition or a warranty
Held a warranty
What happens if a representation is untrue?
It will become a misrepresentation of contract
How do the courts define between a representation and a term?
- Importance attached to the representation
- Special knowledge or skill of the person making the statement
- Time lag between the statement and completion of the contract
- Whether there is a written contract
What is the case for the importance attached to the representation?
Couchman vs Hill
What is the POL from Couchman vs Hill?
The statement was clearly important to the purchaser of the animal so was held a term not a representation
What are the two cases for special knowledge or skill of the person making the statement?
Oscar Chess vs Williams
Dick Bentley vs Harold Smith Motors
What is the POL from Oscar Chess vs Williams?
Seller of a car believed it to be a 1948 model but it was older, held a representation not a term
What is the POL from Dick Bentley vs Harold Smith Motors?
Dealer stated the car had done 20k miles but it had actually done 100k - taken as a term not a mere statement
What is the case for the time leg between the statement and the contract?
Routledge vs Mackay
What is the POL from Routledge vs Mackay? (Time lag)
Time lag was 7 days but the actual date of manufacture was not seen as important so was held a representation not term
What is the case for whether there is a written contract?
Routledge vs Mackay
What is the POL from Routledge vs Mackay (Written contract)
Courts presume that everything that the parties wanted to include as a term of the contract is put in the written contract
What is the act for business-to-business contracts?
Sale of Goods and Services Act 1982
Sale of Goods Act 1979
What is the act for business-to-consumer contracts?
Consumer Rights Act 2015
How can terms be implied by common law?
Business efficacy
Officious bystander test
Custom or Prior dealings with the 2 parties
What are the 2 parts to the business efficacy test?
- Is the term necessary to make the contract effective
- 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
What are the 2 cases that can be used for business efficacy?
The Moorcock
Schawel vs Reade
What is the POL from The Moorcock?
The courts implied a term that the ship would be at a safe mooring that would not be damaged
What is the POL from Schawel vs Reade?
There was an implied term in the contract that the horse would be fit for stud
What case defines the Officious bystander test?
Shirlaw vs Southern Foundries Ltd
What is the POL from Shirlaw vs Southern Foundries Ltd?
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!”
What is the case that says that terms can be implied if they were present in prior dealings between the parties?
Hollier vs Rambler Motors
What is the POL from Hollier vs Rambler Motors?
Not signing one document did not prevent the terms being included in the contract due to prior dealings between the 2 parties
What is the case that says that terms will not be implied if the party never would have agreed to them?
Shell UK Ltd vs Lostock Garage Ltd