Unit 4 - Contract Terms and Vitiating Factors Flashcards
What are the three types of term which may be found in a contract?
Express terms, terms implied by fact and terms implied by statute
What is a representation i/r/t contract terms?
Statements made before the contract which may or may not be considered a term.
What is a “puff” i/r/t contract terms?
A statement made for the purpose of advertisement which is not understood by either part to be legally binding
What is the four point test to determine when a matter previously discussed is considered a term?
- How important was the representation?
- Did one party rely on the skill of the party making the representation?
- In a written agreement, was this signed?
- Were the parties aware of the term?
Case - showing the significance of a representation’s importance to a party i/r/t contract terms
Birch v Paramount Estates (Liverpool) Ltd (1956) - show house
Case - showing importance of reliance on skill i/r/t contract terms
Oscar Chess Ltd v Williams (1957) - amateur carseller
Why are terms implied into contract?
In order to prevent the contract from having to cover every single eventuality.
Case - showing importance of implied terms in contract
Grant v Australian Knitting Mills Ltd (1936) - chemical underwear
What are the three types of terms implied by fact, and how do they differ?
- Terms implied through custom - where common practices over a long period allow an enforceable implied term
- Terms implied through common trade practices - specific to the industry and how that commonly operates
- Terms implied to preserve business efficacy - presumed that agreement is intended to be effective
Case - showing term implied to preserve business efficacy
The Moorcock (1889) - low tide jetty
What is the “officious bystander” rule and in which case did it originate?
The rule that a term may be implied if it is undeniable that the parties would have agreed to it at the time. Shirlaw v Southern Foundaries Ltd (1939)
What are the three types of term found in a contract and how do they differ?
- Conditions, which are fundamental to the contract and a breach will allow the injured party to reject the contract.
- Warranties, which are ancillary and a breach will allow the injured party to claim damages but not to reject the contract
- Innominate terms, where the court will decide which of the above categories the term falls into
Case - example of a contract being rejected due to a breach of a condition
Poussard v Spiers and Pond (1876) - ill operasinger
Which Act of Parliament implies specific terms i/r/t consumer contracts?
Consumer Rights Act 2015
Which Section of the relevant Act describes the implied term for satisfactory quality in a contract to supply goods? Describe in more details what this term implies.
Section 9. This is an objective test as to whether the quality would be considered satisfactory, taking into account their description and price.
Which Section of the relevant Act describes the implied term for fitness for particular purpose in a contract to supply goods? Describe in more details what this term implies.
Section 10. This makes clear that, in the event that the consumer relies on the opinion of the trader, the goods must be fit for the purpose which the consumer requires them, even if this is not the intended purpose of the goods.
Which Section of the relevant Act describes the implied term of description of goods in a contract to supply goods? Describe in more details what this term implies.
Section 11. This confirms that goods must match the description given of them when purchased.
Which Section of the relevant Act details the remedy of short-term right to reject in a contract to supply goods? Describe this remedy in more details.
Section 20. The customer has 30 days from the purchase to reject the goods and end the contract.
Which Section of the relevant Act details the remedy of right to repair or replacement in a contract to supply goods? Describe this remedy in more details.
Section 23. The trader must repair or replace the item within a reasonable time while bearing all costs, unless doing so would be impossible.
Which Section of the relevant Act details the remedy of right to price reduction or final right to reject in a contract to supply goods? Describe this remedy in more details.
Section 24. The consumer has a right to a partial or full refund of the goods if appropriate. They are entitled to this after one repair or one replacement if the goods still do not conform.
