Terms of a contract (non statutory)

Question 1

What are terms of a contract?

Answer 1

The terms of a contract are what the parties agreed. These terms can be expressed or implied in the contract. There are different types of expressed and implied terms that have different consequences if not complied with.

Question 2

The distinction between the two is important for remedies, what are the two rules?

Answer 2

1. If a term of a contract is not observed, there can be a claim for breach of contract
2. If a representation is untrue, the remedy is for misrepresentation

Question 3

The courts will take into account which 4 factors?

Answer 3

1. the importance attached to the representation
2. Special knowledge or skills, of the person making the statement
3. Any time lag
4. Whether there is a written contract

Question 4

What is the main case for Rule 1?

Answer 4

Where the statement of a contract was obviously important to the contract it will be seen as a term of the contract

Couchman v Hill (1947) - C purchased a cow of D which was stated to be a haifer. The cow died in pregnancy. D was liable as this was obviously important to the seller. So D is liable

Question 5

What are the two main cases for Rule 2?

Answer 5

Where there is special knowledge or skill, the statement is more likely to be a term of the contract rather than representation

No special knowledge - Oscar Chess v Williams (1957) - A private seller sold a car to C which he believed to be a 1948 model. It was infact much older. As he has no special skills it was seen as representation not a term

Special knowledge present - Dick Bentley v Harold Smith Motors (1968) - Misleading mileage of the car was a term of the contract rather than misrepresentation

Question 6

What case relates to both rule 3 and 4?

Answer 6

Routledge v Mackay (1954)

3. The actual date of the manafacture was not included in the contract made 7 days later

Question 7

What are the two test for implied terms by common law?

Answer 7

1. The business efficacy adn officious bystander test
2. Custom or prior dealings between the parties

Question 8

Business efficacy and officious bystander test are a two part test. What are the cases relating to them

Answer 8

Business eficacy - The Moorcock case (1889) - Implied undertaking that the ship would be at a safe mooring that would not damage the ship

Officious Bystander Test - Shirlaw v Southern Foundries Ltd (1939) - So obvious it goes without saying.

Question 9

What cases relate to customs and prior dealings?

Answer 9

Local customs - Hutton v Warren (1836)

Prior Conduct - Hillas v Arcos (1932) - Clause lacked detail but presumed to be same as last contract