WEEK 4 LECTURE 1 Flashcards
what is a term?
- inside a contract
- directly triggers contractual liability
what is representation?
- not a term
- outside the contract
- does NOT directly trigger contractual liability
links to misrepresentation week 7 lectures
what are the different types of terms
- condition
- innominate term
- warranty
links to termination week 7
what are parties relatively free to do?
determine their contractual obligations by determining the terms they agree to
how is the freedom of parties constrained?
by:
- rules on incorporating terms in certain circumstances
- rules on interpreting express terms
- rules on implying terms in certain circumstances
what are express terms + their purpose?
- terms agreed on by parties to the contract
- distribute responsibilities + risks between parties by agreement
what are pre-contractual representations?
(some) statements made before the contract is concluded
what COULD happen to other statements made before the contract is concluded?
may become terms of the contract
steps of OBJECTIVE TEST to determine if a pre-contractual statement is a term
- how was the particular statement expressed?
- at what stage was the statement made?
- how important was the statement?
- did the statement-maker have superior? knowledge?
Oscar Chess v Williams [1957] case facts
objectivity + epistemic difference
- car registered in 1948 + was being valued based on its age
- but was actually made in 1930s BUT registration was delayed
- seller = layman, BUT buyer was not
- was an EPISTEMIC difference
- court held statement was NOT a term (not a warranty)
Dick Bentley v Harold Smith Motors [1965] case facts
objectivity + epistemic difference
- car sold as having done 20mph
- found it had actually done 100mph
- buyer = layman, BUT seller was not
- was an EPISTEMIC difference
- court held statement WAS a term
Esso Petroleum v Mardon [1976]
