Terms of contract I & II

Question 1

What case states that the timing of a representation affects whether it is a term or not?

Answer 1

Routledge v McKay - Made representation about the age of a motorbike

Question 2

What 2 cases show that specialist knowledge affects whether the representation is a term or not?

Answer 2

Oscar Chess v Williams - Buyer was expert so should have known - no term
Dick Bentley v Harold Smith - Seller was expert so representation is term

Question 3

What cases show that checks affect whether a representation is a term?

Answer 3

Schawel v Reade - Prevented checks, so representations became terms, as prevention indicated representations were true
Hopkins v Tanqueray - Checks prevented, but representations not terms as a day elapsed and it was an auction

Question 4

What is the parol evidence rule?

Answer 4

Extrinsic evidence may not be added to a written contract

Question 5

What is the case which states that where contracts are not wholly written extrinsic evidence may be added?

Answer 5

J Evans v Andrea Merzario - Machinery not kept in hold, orally stated.

Question 6

Describe the facts of City of Westminster v Mudd.

Answer 6

Collateral contract made allowing mudd to sleep in commercial unit, original term therefore unenforceable

Question 7

What is the rule regarding onerous terms?

Answer 7

Interphoto v Stiletto - The more onerous the term the more flagged it has to be to make it enforceable

Question 8

What is an entire agreement clause?

Answer 8

Inntrepeneur Pub v East Crown - Tried to get out of beer tie agreement on a verbal assurance. However could not use as an entire agreement clause existed meaning no extrinsic evidence or representations could be applied

Question 9

What are the 3 ways which terms can be implied?

Answer 9

In fact
In law
By statute

Question 10

What is the authority for an implied term via an officioius bystander?

Answer 10

Shirlaw v Southern Foundries

Question 11

The Moorcock - describe

Answer 11

A ship rested on the seabed but the ground was not appropriate and damaged the boat. Implied term that the boat should be rested on appropriate ground

Question 12

British Crane Hire v Ipswich Planty

Answer 12

No term as to who should collect the crane, therefore implied term inserted according to trade custom

Question 13

What case demonstrates that an implied term may be inserted due to the previous course of business dealings?

Answer 13

McCutcheon v MacBrayne

Question 14

What 2 cases show that the courts will insert a term where it is necessary?

Answer 14

Liverpool CC v Irwin

Mahmud v BCCI

Question 15

What does s12 of the SGA 1979 state?

Answer 15

You must have the title to the goods you are selling

Question 16

What does s13 of the SGA 1979 state?

Answer 16

Where a sale is made by description the product must conform to the description

Question 17

What does s14 of the SGA 1979 state?

Answer 17

The fitness and quality of the product must reach a reasoanble standard
The product must be durable for a reasonable time period

Question 18

What happened in the case of Priest v Last?

Answer 18

A hot water bottle was purchased which burst. Not fit for purpose or quality violating s14

Question 19

What does s14(3) SGA 1979 state? What case suppots this?

Answer 19

Where a buyer makes a specific purpsoe known, the seller implicitly approves the goods are acceptable for this purpose
Balmoral v Broealis

Question 20

What section states that if the goods are sold by sample, the rest of the product must conform to the sample?

Answer 20

S15 SGA 1979

Question 21

What does the supply of goods and services act 1982 state?

Answer 21

S13 – Reasonable care and skill
S14 – Within a reasonable time
S15 – Pay reasonable consideration

Question 22

What are the 3 types of term?

Answer 22

Conditions
Warranties
Innominate terms

Question 23

Describe the facts of Poussard v Spiers and why this term was a condition.

Answer 23

Opera singer contracted to attend rehearsals, first night and rest of opera. Due to illness didn’t attend till a week in. Held to be a condition as went to the root of the matter

Question 24

Describe the facts of Bettini v Gye and why this isn’t a condition.

Answer 24

Contracted to atttend rehearsals and shows. Only attended 2 days of rehearsals. Contracted wrongly repudiated, as warranty rather than condition, as didn’t go to the route of the matter

Question 25

Describe the case of Schuler v Wickman.

Answer 25

Parties called a term a condition. However court interpreted the term as a warranty as the parties could not have intended to create a condition as the condition was so unreasonable.

Question 26

What are the 2 types of condition?

Answer 26

Promissory condition

Contingent condition

Question 27

What does s15a state?

Answer 27

That if there is a slight difference between the description and actuality, which does not affect functionality then it is unreasoanble for the buyer to return the product in a B2B situation

Question 28

Describe the case of Lombard North Central v Butterworths

Answer 28

Clause of contract stated that punctual repayment was ‘of the essence’. The parties agreed this by acceptance. Therefore was condition as emphasised, so could sue for expected recovery

Question 29

What case defined the innominate term?

Answer 29

Hong Kong Fir v Kawasaki Kisen Kaishi - In this case it was stated in the contract that the ship must be seaworthy, and required a competent crew. Crew fucked up term breached so contract terminated. Hong Kong Fir sued for wrongful repudiation, won as term judged to be a warranty as the functioning of the boat was only restricted for 4.5 months, this didn’t breach the term sufficiently to make it a condition. Innominate term judged on consequences.

Question 30

Describe the early innominate term case of aerial advertising co v Batchelor Peas

Answer 30

Plane advertising peas using sky banners flew over town square on armasitice day. Term that he had to tell BP when going up. Didn’t tell, effect of breach was so sever that judged a condition rather than a warranty

Question 31

What 2 terms have been established by precedent to always be conditions?

Answer 31

Expected ready to load - The Mihalis Angelos 1971

Time of performance - Bunge v Tradax