Topic 2 Terms Of The Contract Flashcards
What is generally not indicative of whether a precontractual statement is a representation or a term?
whether the statement was made spontaneously or in response to a query
Express terms can be incorporated into a contract where
The party affected is made constructively aware of the notice
The parole evidence replies to:
Contraxts that are intended to be entirely written
The use of extrinsic evidence, despite the parol evidence rule, would not be permissible in which situation?
To establish the existence of a collateral contract which may be inconsistent with the main contract
What is NOT a feature of a collateral contract?
it does not matter if it is inconsisten with any particular term of the main contract
In Ellul and Ellul v Oakes, the held that the test for determining if a precontractual statement is a term or not is:
Whether on the totality of the evidence, should the person making the statement be taken to have warranted its accuracy
The general rule of signature at common law is that:
A person who signs a contractual document is bound by its terms whether or not they have read or understood them
What are the categorys of implied terms?
Implied ad hoc, Implied by custom and implied by law
The test for implying a term in fact is:
Whether, based on the presumed intentions of the parties, the term is necessary to give business efficacy to the contract
The basic rule of construction is;
That a contractual meaning is built upon the circumstances surrounding an agreement, including before and after its exectution
In Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Lord Denning MR found that an exclusion clause printed on the back of a parking ticket was not an express term of the contract because:
the ticket was merely a receipt for the money that had been paid.
It has been said that there is no single test for the incorporation of a term into a contract based on prior dealings. This is because:
is a question of fact having regard to the circumstances of each case and the situations of the contractual parties.
Give 3 statements about exclusion clauses
a) they seek to limit or exclude liability,
b) they may limit or excludeliability for breach of statutory duty.
c) Breached a clause of the contract
What are the principles set out in the HCA decision in Darlington V Delco 1986?
a) an exclusion clause should be interpreted according to its ordinary actual meaning,
b) a contextual approach should be adopted in the construction of exclusion clauses.
C) the contra proferentum rule should be used as a last resort in cases of ambiguity
The significance of the decision in Darlington v Delco is that:
In commercial contract, exclusion clauses are likely to be uphelp as in Photho production v Securior transport
In the context of exclusion clauses, the contra proferentum rule means;
That where the meaning of an exclusion clause in ambiguous, the court will resolve it against the author of the contractual document, or partly rely on it.
In Council of city Sydney v west the court held;
That an exclusion clause will only limit or exclude liability in respect of those acts that were authorised or permitted by the contract
A clause that seeks to excluse D;s liability for negligence will generally;
Require words that include negligence within their scope
True or false: If the words of an exclusion clause are wide enough to cover negligence as well as other grouds of liability, the clause will generally be effective only in relation to the other grouds
True
Which important provision in the ACL declares that exlution and limitations clause in consumer contracts are void;
Section 64
