Terms (Paper 3 - Section B Topic 5) Flashcards
1
Q
What is a term?
A
What the parties have agreed between themselves
2
Q
Name the types of terms
A
Condition
Warranty
Innominate
3
Q
What is a Condition?
A
An important term- obligation that must be met or the contract can be repudiated
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
5
Q
What is a Warranty?
A
A minor term where damages can be claimed for a breach
6
Q
Give the held of: Bettini v Gye
A
Singer was entitled to damages to cover his loss of earnings
7
Q
What is an innominate term?
A
An unclear term whether it’s a condition or warranty
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
9
Q
What is an expressed term?
A
Specifically agreed terms
10
Q
What are implied terms?
A
Terms that are expected
11
Q
How can terms be implied by common law?
A
Business efficiency/the officious bystander test
By custom
Prior dealings
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?
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
14
Q
Give the held of: Moorcock
A
The courts implied a term in fact and introduced the business efficiency test
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
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.
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.
18
Q
Give the held of: Shell UK ltd. v Lodstock Garage ltd
A
Shell would have never agreed to such a term
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
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
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
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
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
24
Q
What Act states business to consumer implied terms?
A
Consumer Rights Act 2015
25
What does the Consumer Rights Act 2015 state?
Rights and remedies for consumers and the trader/business has a duty
26
What does s2(3) state of the CRA 2015?
An individual acting for purposes that are wholly or mainly outside that individuals trade, business, craft or possession
27
What does s2(3) of the CRA 2015 state?
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
28
Name some pre contractual info that must be accurate
Total price of goods/services
The address complaints should be sent to
Additional delivery charges
29
What is the right under s9 of the CRA 2015?
Right of satisfactory Quality
30
What does s9(1) of the CRA 2015 state?
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
31
What does s9(2) of the CRA 2015 state?
Satisfactory is defines as ‘when the goods meet the standard that the reasonable person would consider satisfactory’ e.g. description of goods
32
What does s9(3) of the CRA 2015 state?
Satisfactory quality includes state and condition e.g. appearance and finish
33
Under s9(4) the CRA 2015 won’t apply if..
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
34
Give the held of: Rodges v Parish
The car wasn’t fit for purpose, damages could be claimed
35
What right does s10 cover of the CRA 2015?
Fitness for particular purpose
36
What contracts does s10 apply to?
To supply hood for particular purpose
37
What implied term applies to s10 of the CRA 2015?
Good will be fit for purpose they are usually supplied for
38
What does the seller not need to state the purpose of the goods?
When they are being used for their ‘normal’ use
39
Give the held of: Grant v Australian Knitting Mills
C was entitled to damages for negligence
40
What happens if the purchaser has a sensitivity (s10 of CRA 2015)?
D won’t be liable if they are unaware
41
Give the held of: Grithiffths v Peter Conway
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
42
What right does s11 of the CRA 2015 state?
Relating to description
43
What does s11 of the CRA 2015 state?
Every contract is to be treated as including a term that goods will match their description
The consumers statutory rights also must be stated
44
What remedies does the consumer have for supply of goods?
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
What does s49 of the CRA 2015 state?
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
What does s52 of the CRA 2015 state?
This service must be performed within a reasonable time particularly where no time has been specified
47
Give the held of: Thake v Maurice
The surgeon has carried out the operation with reasonable care and skill
48
What are the remedies granted for faliour to provide the rights with respect to supply of services?
Repeat performance s55
Price reduction s56
49
What is an exclusion clause?
Terms that exclude liability for a breach of contract
50
What are limitation clauses?
Terms that set a limit liability for breach of contract
51
What are exclusion and limitation clauses called?
Exemption clauses
52
What are the three common law controls of terms ?
Whether the agreement was signed
Term was incorporated in the contract via notice
Term incorporated as a result of previous dealings
53
Give the held of: Grogan v Robin Meredith
A signature will not incorporate terms if what is signed is not a contractual document
54
Give the held of: L’Estrange v Graucob
She was bound by the contract as she signed it
55
Give the held of: Curtis v Chemical Cleaning and Dyeing Co
The claim was successful due to the oral assurance made from D to C
56
When will a notice be incorporated into a contract ?
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
Give the held of: Thornton v Shoe Lane Parking (terms)
Even though there was a contract the terms which were stated inside a car park were not incorporated in the original contact
58
Give the held of: Kaye v Nu Skin UK
A harsh term must be brought to the attention of the other party
59
Terms cannot be incorporated into the contract after acceptance unless…?
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
Give the held of: Olley v Marlborough Court Hotel
The clause wasn’t incorporated as Cs were unaware of clause when formed the contract
61
Give the held of: Parker v SE Railway
Tickets may incorporate terms if it is reasonable to expect that the back of the ticket will be checked for terms
62
Give the held of: Chappelton v Barry Urban District Council
The reasonable person would have disregarded of the ticket and wouldn’t have read the back- the clause couldn’t be relied on
63
Give the held of: Thompson v London
The company has taken reasonable steps to ensure the customers were aware of the terms
64
Exclusion clauses will only be incorporated into contract if they have… what?
Contractual significance
65
Past dealings must be … for a term to be incorporated
Consistent
66
Give the held of: McCutcheon v David MacBrayne
Dealings were not consistent so it couldn’t be assumed the clause was present
67
Give the held of: Scruttons v Midland Silicones
C was unable to sue for injuries as he wasn’t a party to the agreement
68
What does the Contract (Rights of Third Parties) Act 1999 state?
3rd parties can rely on exclusion clauses as long as the other requirements of the act are met
69
What is the contra proferentem rule?
This rule prevents terms being given a wider meaning- only applied when exclusion clause is clear
70
Give the held of: White v John Warwick
The ambiguous wording protected them from a claim in contract law but not in negligence
71
Give the held of: Transoceanic UK ltd v Providence Resources plc
The contra proferentem rule applies when the term is ambiguous and one sided
72
What are the statutory controls on terms?
Unfair Contract Terms Act 1977 (business to business)
AND
The Consumers Rights Act 2025 (consumer to business)
73
What does the unfair contract terms act 1977 (UCTA) provide?
Protection against exclusion clauses which is a reasonableness test
74
What does s2(1) of the UCTA 1977 state?
A person cannot exclude liability for death or personal injury caused by negligence
75
What does s2(2) of the UCTA 1977 state?
A person cannot exclude or resent liability for negligence beyond what is reasonable
76
What does s6(1) of the UCTA 1977 state ?
The implied condition as to title cannot be excluded
77
What does s11(5) state in the UCTA 1977!
Reasonable in all circumstances
Clauses must be reasonable
78
Give the held of: Warren v Trueprint Ltd
Clause was unreasonable and trueprint had to pay for the wedding photos they losg
79
What does s11(1) of the UCTA 1977 state?
The knowledge test
Clauses must be reasonable in light of what the parties were aware of at the time
80
Give the held of: Smith v Eric S Bush
This clause wasn’t reasonable
81
What does s11(2) of the UCTA 1977 state?
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
Give the held of: Watford Electronics Ltd v Sandersons CFL Ltd
This was a reasonable term as the parties has equal bargaining power
83
What does s11(4) of the UCTA 1977 state?
Limitation causes
84
What is the test under s11(4)?
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
Give the held of: George Mitchell Ltd v Finney Lock Seeds Ltd
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
What does the Consumer Rights Act 2015 (CRA) include?
The fairness test for clauses
A grey list of potential unfair clauses
87
What does s31 of the CRA 2015 state?
Sales of goods- exclusion clause bars
88
What does s9 of the CRA 2025 state?
Can’t exclude that goods be of satisfactory quality
89
What does s10 of the CRA 2015 state?
Can’t exclude good be fit for a particular purpose
90
What does s11 of the CRA 2025 state?
Can’t exclude goods be as described
91
What does s14 of the CRA 2015 state?
Can’t exclude that goods match the model seen/examined
92
What does s15 of the CRA 2015 state?
Can’t exclude instillation as a part of conformity of the goods with the contract
93
What does s16 state of the CRA 2015?
Digital items have to match what is listed too
94
What does s17 of the CRA 2025 state?
Trader cannot supply goods that don’t belong to them
95
What does s57 of the CRA 2015 state?
Supply of goods- exclusion clause bars
96
What does s49 state of the CRA 2015?
Service must be performed with reasonable care/skill
97
What does s50 state of the CRA 2015?
Info about the trader or service to be binding
98
What does s51 state of the CRA 2015?
Reasonable price to be paid for a service
99
What does s52 state of the CRA 2015?
Service must be performed in a reasonable time
100
What does s65 of the CRA 2015 state ?
Prohibits exclusion or restriction of liability for death or personal injury resulting from negligence
101
What does s62 of the CRA 2015 state?
Customer terms and notices must be fair
102
What does the CRA 2015 define “unfair” as?
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
What is the fairness test supplemented by?
“Grey terms”
104
Give an example of a grey term
Disproportionate financial sanctions
105
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?
Transparent
Prominent
106
Define transparent
In plain intelligible language and legible if written
107
Define prominent
Brought to the consumers attention in such way that the average consumer would be aware of the term
108
All communication/announcements must be what?
Reasonable to be assumed or heard/seen by the consumer
