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Law > Terms (Paper 3 - Section B Topic 5) > Flashcards

Terms (Paper 3 - Section B Topic 5) Flashcards

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1
Q

What is a term?

A

What the parties have agreed between themselves

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2
Q

Name the types of terms

A

Condition
Warranty
Innominate

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3
Q

What is a Condition?

A

An important term- obligation that must be met or the contract can be repudiated

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4
Q

Give the held of: Poussard v Spiders and Pond

A

She had broken her contract as her role was central to the performance

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5
Q

What is a Warranty?

A

A minor term where damages can be claimed for a breach

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6
Q

Give the held of: Bettini v Gye

A

Singer was entitled to damages to cover his loss of earnings

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7
Q

What is an innominate term?

A

An unclear term whether it’s a condition or warranty

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8
Q

Give the held of: Hong Kong Fir Shipping

A

D was liable for wrongful repudiation. The courts have introduced the innominate term approach

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9
Q

What is an expressed term?

A

Specifically agreed terms

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10
Q

What are implied terms?

A

Terms that are expected

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11
Q

How can terms be implied by common law?

A

Business efficiency/the officious bystander test
By custom
Prior dealings

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12
Q

What is the two part officious bystander test?

A

Term necessary to contract to make contract effective?
If the parties have thought about it would they have agreed that this term should be in the contract?

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13
Q

What is business efficiency in terms of terms?

A

The courts won’t apply a term if a contract makes business sense without the term

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14
Q

Give the held of: Moorcock

A

The courts implied a term in fact and introduced the business efficiency test

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15
Q

Give the held of: Schawel v Reade

A

Though this statement wasn’t written in the contract, it was held to be an implied term in agreement

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16
Q

What is the officious bystander test?

A

Had a 3rd party been there at the time the contract was made, the term in question should be implied.
It must be obvious that both parties would’ve agreed to the term at the time the contract was made.

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17
Q

Give the held of: Hollier v Rambler

A

Failure to sign this document on this occasion meant the exclusion clause didn’t apply.

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18
Q

Give the held of: Shell UK ltd. v Lodstock Garage ltd

A

Shell would have never agreed to such a term

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19
Q

Give the held of: Egan v Static Control Components

A

Implied terms are genuine if the reasonable person would have understood the term to be the intention of both parties

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20
Q

Give the held of: Marks and Spencer PLC v BNP Paribas Securities Services Trust

A

Reasonableness is to be judged objectively considering what the parties would have agreed

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21
Q

Give the held of: Hutton v Warren

A

It was customary during time for contracts to contain a term so this was an implied term of the contract

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22
Q

Give the held of: Hillas v Arcos

A

Prior terms stated in previous contract would be implied terms within the contract in question

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23
Q

What Act states implied terms for business to business relationships?

A

Sale of Good Act 1979 and Supply of Goods and Services Act 1982

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24
Q

What Act states business to consumer implied terms?

A

Consumer Rights Act 2015

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25
Q

What does the Consumer Rights Act 2015 state?

A

Rights and remedies for consumers and the trader/business has a duty

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26
Q

What does s2(3) state of the CRA 2015?

A

An individual acting for purposes that are wholly or mainly outside that individuals trade, business, craft or possession

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27
Q

What does s2(3) of the CRA 2015 state?

A

A person acting for purpose relating to that persons trade, business, craft or profession, whether acting personally or through another person acting in the trades name or on the traders behalf

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28
Q

Name some pre contractual info that must be accurate

A

Total price of goods/services
The address complaints should be sent to
Additional delivery charges

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29
Q

What is the right under s9 of the CRA 2015?

A

Right of satisfactory Quality

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30
Q

What does s9(1) of the CRA 2015 state?

A

Every contract as to supply of goods is to be treated as if it includes a term that the quality of the goods is satisfactory

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31
Q

What does s9(2) of the CRA 2015 state?

A

Satisfactory is defines as ‘when the goods meet the standard that the reasonable person would consider satisfactory’ e.g. description of goods

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32
Q

What does s9(3) of the CRA 2015 state?

A

Satisfactory quality includes state and condition e.g. appearance and finish

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33
Q

Under s9(4) the CRA 2015 won’t apply if..

A

Defects drawn to customer before contract is made
Consumer examines the goods before a contract is made
Goods have been sold after inspection of sample and the defect would’ve been apparent on a reasonable examination of the sample

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34
Q

Give the held of: Rodges v Parish

A

The car wasn’t fit for purpose, damages could be claimed

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35
Q

What right does s10 cover of the CRA 2015?

A

Fitness for particular purpose

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36
Q

What contracts does s10 apply to?

A

To supply hood for particular purpose

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37
Q

What implied term applies to s10 of the CRA 2015?

A

Good will be fit for purpose they are usually supplied for

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38
Q

What does the seller not need to state the purpose of the goods?

A

When they are being used for their ‘normal’ use

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39
Q

Give the held of: Grant v Australian Knitting Mills

A

C was entitled to damages for negligence

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40
Q

What happens if the purchaser has a sensitivity (s10 of CRA 2015)?

A

D won’t be liable if they are unaware

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41
Q

Give the held of: Grithiffths v Peter Conway

A

D won’t be liable if goods are fit for purpose and if the purchaser has a specialist they need to make the trader aware of this

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42
Q

What right does s11 of the CRA 2015 state?

A

Relating to description

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43
Q

What does s11 of the CRA 2015 state?

A

Every contract is to be treated as including a term that goods will match their description
The consumers statutory rights also must be stated

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44
Q

What remedies does the consumer have for supply of goods?

A
  1. Short term right to reject s20
  2. Right to repair or replace s23
  3. Right to a price reduction or final right to reject s24
45
Q

What does s49 of the CRA 2015 state?

A

Contracts for the supply of services are treated to contain a term with regards to the traders performing the task with reasonable care and skill

46
Q

What does s52 of the CRA 2015 state?

A

This service must be performed within a reasonable time particularly where no time has been specified

47
Q

Give the held of: Thake v Maurice

A

The surgeon has carried out the operation with reasonable care and skill

48
Q

What are the remedies granted for faliour to provide the rights with respect to supply of services?

A

Repeat performance s55
Price reduction s56

49
Q

What is an exclusion clause?

A

Terms that exclude liability for a breach of contract

50
Q

What are limitation clauses?

A

Terms that set a limit liability for breach of contract

51
Q

What are exclusion and limitation clauses called?

A

Exemption clauses

52
Q

What are the three common law controls of terms ?

A

Whether the agreement was signed
Term was incorporated in the contract via notice
Term incorporated as a result of previous dealings

53
Q

Give the held of: Grogan v Robin Meredith

A

A signature will not incorporate terms if what is signed is not a contractual document

54
Q

Give the held of: L’Estrange v Graucob

A

She was bound by the contract as she signed it

55
Q

Give the held of: Curtis v Chemical Cleaning and Dyeing Co

A

The claim was successful due to the oral assurance made from D to C

56
Q

When will a notice be incorporated into a contract ?

A

If at the time of the contract was made, the unsigned notice was brought to the attention of the person suffering the exclusion clause

57
Q

Give the held of: Thornton v Shoe Lane Parking (terms)

A

Even though there was a contract the terms which were stated inside a car park were not incorporated in the original contact

58
Q

Give the held of: Kaye v Nu Skin UK

A

A harsh term must be brought to the attention of the other party

59
Q

Terms cannot be incorporated into the contract after acceptance unless…?

A

There is a new contract which varies original contract
OR
If it’s specified in the original contact that there can be a variation in terms

60
Q

Give the held of: Olley v Marlborough Court Hotel

A

The clause wasn’t incorporated as Cs were unaware of clause when formed the contract

61
Q

Give the held of: Parker v SE Railway

A

Tickets may incorporate terms if it is reasonable to expect that the back of the ticket will be checked for terms

62
Q

Give the held of: Chappelton v Barry Urban District Council

A

The reasonable person would have disregarded of the ticket and wouldn’t have read the back- the clause couldn’t be relied on

63
Q

Give the held of: Thompson v London

A

The company has taken reasonable steps to ensure the customers were aware of the terms

64
Q

Exclusion clauses will only be incorporated into contract if they have… what?

A

Contractual significance

65
Q

Past dealings must be … for a term to be incorporated

A

Consistent

66
Q

Give the held of: McCutcheon v David MacBrayne

A

Dealings were not consistent so it couldn’t be assumed the clause was present

67
Q

Give the held of: Scruttons v Midland Silicones

A

C was unable to sue for injuries as he wasn’t a party to the agreement

68
Q

What does the Contract (Rights of Third Parties) Act 1999 state?

A

3rd parties can rely on exclusion clauses as long as the other requirements of the act are met

69
Q

What is the contra proferentem rule?

A

This rule prevents terms being given a wider meaning- only applied when exclusion clause is clear

70
Q

Give the held of: White v John Warwick

A

The ambiguous wording protected them from a claim in contract law but not in negligence

71
Q

Give the held of: Transoceanic UK ltd v Providence Resources plc

A

The contra proferentem rule applies when the term is ambiguous and one sided

72
Q

What are the statutory controls on terms?

A

Unfair Contract Terms Act 1977 (business to business)
AND
The Consumers Rights Act 2025 (consumer to business)

73
Q

What does the unfair contract terms act 1977 (UCTA) provide?

A

Protection against exclusion clauses which is a reasonableness test

74
Q

What does s2(1) of the UCTA 1977 state?

A

A person cannot exclude liability for death or personal injury caused by negligence

75
Q

What does s2(2) of the UCTA 1977 state?

A

A person cannot exclude or resent liability for negligence beyond what is reasonable

76
Q

What does s6(1) of the UCTA 1977 state ?

A

The implied condition as to title cannot be excluded

77
Q

What does s11(5) state in the UCTA 1977!

A

Reasonable in all circumstances
Clauses must be reasonable

78
Q

Give the held of: Warren v Trueprint Ltd

A

Clause was unreasonable and trueprint had to pay for the wedding photos they losg

79
Q

What does s11(1) of the UCTA 1977 state?

A

The knowledge test
Clauses must be reasonable in light of what the parties were aware of at the time

80
Q

Give the held of: Smith v Eric S Bush

A

This clause wasn’t reasonable

81
Q

What does s11(2) of the UCTA 1977 state?

A

Breaches of implied conditions
Criteria set out in Act UCTA 1977 e.g. bargaining power or was the consumer given an inducement to accept the term

82
Q

Give the held of: Watford Electronics Ltd v Sandersons CFL Ltd

A

This was a reasonable term as the parties has equal bargaining power

83
Q

What does s11(4) of the UCTA 1977 state?

A

Limitation causes

84
Q

What is the test under s11(4)?

A

Resources which D could expect to be available for meeting his liability should it arise
AND
How far it was open to D to cover himself by insurance against a successful claim

85
Q

Give the held of: George Mitchell Ltd v Finney Lock Seeds Ltd

A

The clause wasn’t reasonable as:
- breach arose from sellers negligence
- seller should’ve insured against crop failure
- in the past the seller had settled claims which exceeded the limitation sum

86
Q

What does the Consumer Rights Act 2015 (CRA) include?

A

The fairness test for clauses
A grey list of potential unfair clauses

87
Q

What does s31 of the CRA 2015 state?

A

Sales of goods- exclusion clause bars

88
Q

What does s9 of the CRA 2025 state?

A

Can’t exclude that goods be of satisfactory quality

89
Q

What does s10 of the CRA 2015 state?

A

Can’t exclude good be fit for a particular purpose

90
Q

What does s11 of the CRA 2025 state?

A

Can’t exclude goods be as described

91
Q

What does s14 of the CRA 2015 state?

A

Can’t exclude that goods match the model seen/examined

92
Q

What does s15 of the CRA 2015 state?

A

Can’t exclude instillation as a part of conformity of the goods with the contract

93
Q

What does s16 state of the CRA 2015?

A

Digital items have to match what is listed too

94
Q

What does s17 of the CRA 2025 state?

A

Trader cannot supply goods that don’t belong to them

95
Q

What does s57 of the CRA 2015 state?

A

Supply of goods- exclusion clause bars

96
Q

What does s49 state of the CRA 2015?

A

Service must be performed with reasonable care/skill

97
Q

What does s50 state of the CRA 2015?

A

Info about the trader or service to be binding

98
Q

What does s51 state of the CRA 2015?

A

Reasonable price to be paid for a service

99
Q

What does s52 state of the CRA 2015?

A

Service must be performed in a reasonable time

100
Q

What does s65 of the CRA 2015 state ?

A

Prohibits exclusion or restriction of liability for death or personal injury resulting from negligence

101
Q

What does s62 of the CRA 2015 state?

A

Customer terms and notices must be fair

102
Q

What does the CRA 2015 define “unfair” as?

A

Terms that put the customer at a disadvantage by limiting rights or disproportionately increasing his obligations in comparison to the traders rights and obligations

103
Q

What is the fairness test supplemented by?

A

“Grey terms”

104
Q

Give an example of a grey term

A

Disproportionate financial sanctions

105
Q

Terms relating to main subject of contract or the terms that set price are not subject to the fairness test unless they are both what?

A

Transparent
Prominent

106
Q

Define transparent

A

In plain intelligible language and legible if written

107
Q

Define prominent

A

Brought to the consumers attention in such way that the average consumer would be aware of the term

108
Q

All communication/announcements must be what?

A

Reasonable to be assumed or heard/seen by the consumer

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