Terms or Representations

Question 1

4 factors that a court will consider when deciding if a statement was a term or just a representation

Answer 1

1. the importance attached to the statement
2. special knowledge/ skill of a person who made the statement
3. time lag between statement and final contract
4. whether the control was put into writing (not just oral)

Question 2

1. The importance attached to the statement

Answer 2

if the statement was very important to the C when they were deciding whether to enter the contract, then the statement was probably a term of the contract

Question 3

Couchmann v Hill

Answer 3

An auction catalogue stated that a cow was not pregnant. The auctioneer and farmer selling the animal confirmed this. In fact the cow was pregnant + died while calving.
The statement was clearly important to the purchase and was taken as a TERM rather than a representation

Question 4

2. The special knowledge/skill of the person who made the statement

Answer 4

if the person making the statement was very knowledgeable about the subject, the statement was probably a term

Question 5

Oscar Chess v Williams

Answer 5

The private seller of a car believed it to be a 1948 model but it was actually much older and worth a lot less. Not knowledgeable in this area.
Not a term in this contract but a REPRESENTATION

Question 6

Dick Bentley v Harold Smith motors

Answer 6

the car dealer stated that the car had done 20,000 miles when in fact it had done 100,000 miles - garage had expert knowledge
Even though that statement wasn’t written in the contract, it was taken to be a TERM of the contract rather than a mere representation

Question 7

if a term is breached, the C can sue for…

Answer 7

Breach of Contract

Question 8

The remedies are…

Answer 8

> repudiation (if term is a condition)
damages (if term is a warranty)

Question 9

if a representation is breached, the C can only sue for…

Answer 9

misrepresentation

Question 10

3. The time lag between the statement and the final contract

Answer 10

if a contract is finalised a long time after a statement is made and the statement was not repeated, the statement is likely to be mere representation

Question 11

Routledge v Mackay

Answer 11

date of manufacture was misstated by 12 years, the contract was made 7 days after this was stated
the court decided that the statement was a mere representation

Question 12

4. Whether the contract was put into writing (not just oral)

Answer 12

Not all contracts are written down, but if a contract is in writing, the court will presume everything the parties wanted was written down - everything else said was a representation