Topic 2 Terms Of The Contract

Question 1

What is generally not indicative of whether a precontractual statement is a representation or a term?

Answer 1

whether the statement was made spontaneously or in response to a query

Question 2

Express terms can be incorporated into a contract where

Answer 2

The party affected is made constructively aware of the notice

Question 3

The parole evidence replies to:

Answer 3

Contraxts that are intended to be entirely written

Question 4

The use of extrinsic evidence, despite the parol evidence rule, would not be permissible in which situation?

Answer 4

To establish the existence of a collateral contract which may be inconsistent with the main contract

Question 5

What is NOT a feature of a collateral contract?

Answer 5

it does not matter if it is inconsisten with any particular term of the main contract

Question 6

In Ellul and Ellul v Oakes, the held that the test for determining if a precontractual statement is a term or not is:

Answer 6

Whether on the totality of the evidence, should the person making the statement be taken to have warranted its accuracy

Question 7

The general rule of signature at common law is that:

Answer 7

A person who signs a contractual document is bound by its terms whether or not they have read or understood them

Question 8

What are the categorys of implied terms?

Answer 8

Implied ad hoc, Implied by custom and implied by law

Question 9

The test for implying a term in fact is:

Answer 9

Whether, based on the presumed intentions of the parties, the term is necessary to give business efficacy to the contract

Question 10

The basic rule of construction is;

Answer 10

That a contractual meaning is built upon the circumstances surrounding an agreement, including before and after its exectution

Question 11

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:

Answer 11

the ticket was merely a receipt for the money that had been paid.

Question 12

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:

Answer 12

is a question of fact having regard to the circumstances of each case and the situations of the contractual parties.

Question 13

Give 3 statements about exclusion clauses

Answer 13

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

Question 14

What are the principles set out in the HCA decision in Darlington V Delco 1986?

Answer 14

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

Question 15

The significance of the decision in Darlington v Delco is that:

Answer 15

In commercial contract, exclusion clauses are likely to be uphelp as in Photho production v Securior transport

Question 16

In the context of exclusion clauses, the contra proferentum rule means;

Answer 16

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.

Question 17

In Council of city Sydney v west the court held;

Answer 17

That an exclusion clause will only limit or exclude liability in respect of those acts that were authorised or permitted by the contract

Question 18

A clause that seeks to excluse D;s liability for negligence will generally;

Answer 18

Require words that include negligence within their scope

Question 19

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

Answer 19

True

Question 20

Which important provision in the ACL declares that exlution and limitations clause in consumer contracts are void;

Answer 20

Section 64