U4B: Terms Flashcards
What is a term in a contract?
-A part of the contract which can invalidate the contract if not satisfied
-A promise/ undertaking regarding the contract
What is a representation in a contract?
-A statement which induces anothe to enter a contract, but is NOT a part of that contract
What happens if a term is not observed?
-Can be claim for breach of contract
What happens if a representation isn’t true?
-The remedy is misreprepresentation
What (5) factors suggest that a statement has become a term?
1) Statement of importance to the parties
2) D has specialist knowledge
3) Short time gap between statement and contract formation
4) It was put into writing
5) The term was sufficiently drawn to the other party’s attention before/at time of contract formation
What does (1)’ Importance of the statement to parties’ mean/include?
-If the statement is CENTRAL to the purpose of the contract, it is a term
What is a case example for when (1)’ Importance of the statement to parties’ applied?
-Birch v Paramount
What does (2)’D has specialist knowledge’ mean?
-If the D has MORE specialist knowledge than the claimant, then their statements are likely to be terms
-If not= representation
-The EXTENT to which one party relied on the other
What is a case example for when (2) ‘D has specialist knowledge’ DIDN’T apply?
-Oscar Chess v Williams
What does (3)’ Short timegap between statement and formation of contract’ mean/include?
-If the contract is signed a long time after the statement was made, then the statement is likely to be a representation- as NOT CENTRAL to decision-making
What is a case example where (4) ‘If the statement was put into writing, it is likely to be a term’ DIDNT APPLY?’
-Routledge v McKay
-Seven day gap
What does (5)’ Wether the statement was sufficiently drawn to the other party’s attention before formation’ mean/include?
-If the statement was drawn to the other parties attention, then the D can rely on this as a term
What is a case example for (5)’ Whether the statement was sufficiently drawn to the other party’s attention before formation’?
-O’brien V MGN
What happened in O’brien V MGN?
-‘Normal mirror rules apply’ was seen to be just enough to bring the rules to the attention of those claiming on a scratch card
What are express terms?
-Terms which are negotiated and agreed by the contracting parties
What can express terms include?
-Can include exclusion or limitation clauses
How are express terms expressed?
-Can be written or verbal
What are the three types that Express terms can be classified as?
-Conditions
-Warranties
-Inominate terms
How important are conditions and where do they go?
-Most important terms of a contract
-Goes at the ROOT of a contract
What does a breach in conditions mean?
-Would render te contract Meaningless or impossible
-Claimant is entitled to repudiate and/or seek damages
What topics do Conditions generally include?
-Quality
-Fitness for purpose
-Complying with Sample/Description
-Timeframes in situations where the condition is key
What is a case example for a breach of Condition?
-Poussard V Spiers + Pond
What is a case example for a breach of Warranty?
-Bettini v GYE
How can you know if it is a condition or a warranty?
-Whether the breach deprives the innocent party of substantially the whole benefit of the contract.
-If the answer is yes then it is treated as a breach of a condition.
-if no, it is as though a warranty has been breached.
