Terms of the Contract Flashcards

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1
Q

statements that do form part of the contract are known as what?

A

the terms of the contract (legal obligations)

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2
Q

when are the injured party entitled to sue for damages for breach of contract?

A

if the terms of the contract are breached

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3
Q

if the pre-contractual statement does not form part of the contract it is classified as what?

A

a representation

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4
Q

what are the three types of contractual term?

A

-conditions
-warranties
-intermediate terms

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5
Q

what is a condition?

A

an essential term that if breached, the injured party is entitled to damages and is also entitled to get out of the contract if they want to

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6
Q

what is a warranty?

A

the only remedy available for damages for breach of contract

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7
Q

what is an intermediate term?

A

The injured party will be entitled to damages for breach of contract and may or may not be entitled to get out of the contract.

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8
Q

what is an exemption clause?

A

a clause in a contract that limits or removes a party’s liability if something goes wrong.

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9
Q

what does incorporation mean?

A

the clause becomes part of the contract

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10
Q

an exemption clause can be incorporated into a contract in one of three ways:

A
  1. signature
  2. notice
  3. course of dealings
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11
Q

If a document which contains an exemption clause has been signed, evidence of notice of the clause is what?

A

irrelevant

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12
Q

Where the document is unsigned, the exemption clause may be what?

A

incorporated into the contract if reasonable steps have been taken to bring it to the attention of the other party.

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13
Q

what are the three issues to be addressed where the document is unsigned?

A

i. Where is the clause contained?
ii. Was notice given in good time?
iii. Were reasonable steps taken to bring it to the other party’s attention?

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14
Q

Before the court will even begin to consider whether reasonable notice has been given of an exemption clause in any particular case, what is essential?

A

that the clause must be contained in something which can be regarded as a contractual document.

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15
Q

if the exemption clause was not brought to the attention of the other party before or at the time the contract was made, what cannot be done?

A

it cannot be incorporated into the contract

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16
Q

why will an exemption clause not be incorporated into an unsigned contract?

A

where it cannot be incorporated into the contract

17
Q

is it necessary to show that the term was brought to the actual notice of the other party?

A

no, merely that reasonable steps were taken in the circumstances to do so.

18
Q

what is the question to be asked in relation to incorporation of an exemption clause?

A

whether the party seeking to rely on the clause did what was reasonably sufficient to give the other party notice of the condition.

19
Q

if an exemption clause contains any harsh or unusual provisions, what does the courts expect?

A

more effort should be made by the party seeking to rely on the clause to bring it to the attention of the other party

20
Q

If parties contract with each other on a regular basis, the courts must do what?

A

balance the injustice of holding one party to be bound by a term which they did not read against the expectation of the other party.

21
Q

if the parties contract regularly and one party issues documents which transfer the risk to the other party, they are entitled to do what?

A

they are entitled to assume that the other party agrees to the terms they are offering

22
Q

For incorporation to occur as a result of a course of dealing or conduct the course of dealing must be what?

A

consistent

23
Q

One or two isolated incidents will not constitute a course of dealing unless what?

A

both parties are of similar bargaining strength and operate on terms which are acknowledged to be common within their trade/business

24
Q

Criteria for economic duress:

A

-illegitimate pressure constituting a ‘but for cause’
-threat to breach ctt generally regarded as illegitimate
-was there a ‘real choice/realistic alternative’?’
-presence/absence of protest may be relevant but its absence will not be definitive

25
Q
A