Terms or representations

Question 1

Heilbut, Symons v Buckleton (1913)

Answer 1

Whether a statement is a representation or a term is primarily a question of the intention of the parties and this is viewed objectively.

Question 2

Guidelines when parties’ intention is unclear

Answer 2

1. The timing of the statement.
2. Statements reduced to writing.
3. The importance of the statement.
4. Specialist expertise.
5. Opportunity to verify.

Question 3

1. The timing of the statement

Answer 3

Where there is a distinct interval of time between making the statement and concluding of the contract.

Routledge v McKay (1954): Sale of a motorbike. Seller described it as being a particular model a week before to the conclusion of the contract. Seller’s statement was a representation not a term.

Question 4

2. Statement reduced to writing.

Answer 4

Oral statements that subsequently appear in the written contract will normally be terms. Statements excluded are more likely to be representations.
Routledge v McKay (1954)

Question 5

3. The importance of the statement

Answer 5

A statament is likely to be a term if it so vital that it is clear that the injured party only entered into the contract because it was been made ant the other party was aware of that fact.
Bannerman v White (1861) - make or break clause.

Question 6

4. Specialist expertise

Answer 6

Where one party possesses superior knowledge and skill about the subject matter of the contract, the court may conclude that any statement made by that party is intended to be term.
Dick Bentley Productions v Harold Smith Motors (1965): Defendant sold a Bentley saying it had done only certain number of miles. The car in fact was in poor condition. HELD; the statement was a term since the dealer was in better position to know the truth.
Oscar Chess Ltd v Williams (1957): Similar case but the seller did not possess superior knowledge and skill about the subject matter of the contract.