Types of terms Flashcards
What are conditions?
A condition is a term at the heart of the contract and therefore if a condition is breached the innocent party has the right to end the contract and claim for any losses.
This is repudiation.
What happened in Poussard V Spiers and pond?
Actress did not turn up to the first performance of a play. This was a condition of the contract so the contract could be repudiated.
What happened in The Mihalis Angelos?
Clause in the contract said that the ship was expected to be ready to load on the 1st of July, cancelled the contract on 17th July.
Expected to load was a condition as it ensured commercial certainty.
What is a warranty?
A minor term in the contract which if it is not performed will cause a loss but does not form part of the central agreement.
What happened in Bettini V Gye?
Did not turn up for rehearsals.
The rehearsals were only a warranty so the contract could not be repudiated.
What is an innominate term?
This is a term in the contact that can be treated as either a condition or a warranty depending on the nature of the breach of the term.
The importance these terms only becomes known when breached.
What happened in Hong Kong shipping V Kawasaki?
Term stated that ship must be ‘in every way fitted for ordinary cargo service’. Ship had a faulty engine.
Only a warranty as the engine could be easily fixed.
What happened in Schuler V Wickman tools?
Manufacturer classified the term as a condition.
Despite the fact that the contract had stated that the term was a condition, the courts can still declare it a warranty.
What is a statement?
Can either be considered a representation or a term of the contract.
What is a representation and what is a term?
- Representation are discussions/negotiations of what should be included in a contract.
- A term is a statement included in the contract that the parties have agreed to follow and be legally obliged to.
What helps to decide if a statement is a term or a representation?
- Is the statement important? (Coachman V Hill)
- Who made the statement?
If made by an expert its more likely to be a term. (Oscar chess V Williams) - Was it in writing?
If a statement is in writing its usually a term. - When was the statement made?
If given more notice its usually a term (Routledge V Mackay) - Was the other party aware of the statement?
Can only be a contract if the other party knows of the statement. - Does the statement try to vary or contradict the terms of a written contract?
Earlier discussions that are not included are presumed to be deliberately excluded by parties.
