Terms or Representations Flashcards
4 factors that a court will consider when deciding if a statement was a term or just a representation
- the importance attached to the statement
- special knowledge/ skill of a person who made the statement
- time lag between statement and final contract
- whether the control was put into writing (not just oral)
- The importance attached to the statement
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
Couchmann v Hill
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
- The special knowledge/skill of the person who made the statement
if the person making the statement was very knowledgeable about the subject, the statement was probably a term
Oscar Chess v Williams
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
Dick Bentley v Harold Smith motors
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
if a term is breached, the C can sue for…
Breach of Contract
The remedies are…
> repudiation (if term is a condition)
damages (if term is a warranty)
if a representation is breached, the C can only sue for…
misrepresentation
- The time lag between the statement and the final contract
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
Routledge v Mackay
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
- Whether the contract was put into writing (not just oral)
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