Week Five Flashcards
What are the key cases that set a precedent on the Battle of the Forms and what that is?
Butler Machine Tool Co v Ex-Cell-O Corporation (England) Ltd [1979], A counter offer rejects the original offer
Uniroyal Ltd. v Miller 1985, Conditions in an offer are not inherently binding unless expressly accepted.
Roofcare Ltd. v Gillies 1984, Accepting work to proceed without written acceptance of new terms implies the original offer conditions apply.
Specialist Insulation Ltd v Pro-Duct (Fife) Ltd [2012], Standard terms apply unless inconsistent terms are accepted in writing.
What are battle of the forms?
Negotiation of an agreement where there is confliction between each parties terms
What are some case references for the “last shot” analysis?
Uniroyal Ltd v Miller & Co Ltd 1985 SLT 101 - Must expressly accept the terms for them to binding
Continental Tyre & Rubber Co Ltd v Trunk Trailer Ltd 1985 SC 163 - ???
What type of clause is an arbitration clause?
To resolve disputes through arbitration instead of the courts
What is the significance of an arbitration clause?
Specifies that disputes will be resolved through arbitration under specified rules (Y Rules).
Includes details such as the number of arbitrators and the legal seat of arbitration.
Why is an arbitration clause important?
Provides a clear method and forum for dispute resolution.
Can offer a more private and potentially faster resolution process compared to court litigation.
The seat of arbitration can affect applicable legal procedures and enforcement.
What type of clause is a governing law and jurisdiction clause?
Specifies the legal system and which courts have jurisdiction if disputes arise
What is the significance of a governing law and jurisdiction clause?
Determines the legal system that will govern the contract and any related disputes.
Grants exclusive jurisdiction to the courts of a specified country to settle disputes.
What type of clause is an entire agreement clause?
Defines the scope of an agreement states the contract is complete and shows the final understanding between parties
What is the significance of an entire agreement clause?
Affirms that the written contract represents the complete and final agreement between the parties.
Supersedes all prior agreements, whether oral or written.
The purpose of an entire agreement clause is discussed in what case?
Anwar & Anwar v Britton & Barclay 2018 - It was found that the entire agreement clause did not clearly and unambiguously exclude liability for pre contractual misrepresentation.
What are the three main statutory instruments for the Contract (Scotland) Act 1997 regarding formation without express terms?
s1(1): Presumption that document comprises all express terms unless proven otherwise.
s1(2): Admissibility of extrinsic evidence for proving additional terms.
s1(3): Explicit statement of comprehensive terms is conclusive.
What are the principles of interpretation and what they entail?
Aim to reflect the common intention of parties.
Objective approach considers surrounding circumstances.
Literal approach focuses on ordinary word meanings.
Emphasis on commercial sense to avoid absurd results.
Contra proferentem principle: Ambiguities are interpreted against the party relying on the term.
What is an error in the substatntials?
Mistakes that go to the root of the contract, involving a fundamental aspect
Whats a key cases regarding identifying capacity and intent to contract?
Taylor v Provan (1864)
What case is concerned with the reasons a contract could not be put aside and what that is?
Boyd & Forrest v The Glasgow and South-Western Railway Co 1912,
The contract was not set aside due to lack of clear evidence proving misrepresentation or mistake.
What are the essential features of a valid contract?
Offer and Acceptance: A clear offer by one party, accepted by another.
Capacity: All parties must have the legal capacity to contract.
Consideration: Something of value must be exchanged.
Intention to Create Legal Relations: Both parties must intend for the agreement to be legally binding.
Legality: The purpose of the contract must be legal.
