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Private Law I > Week Nine > Flashcards

Week Nine Flashcards

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1
Q

What are the key focuses when discussing implied terms in contracts?

A

What is an implied term?

When will the law imply terms into a contract?

Why does the law imply terms into a contract?

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2
Q

What are the categories of implied terms?

A

Implied by Law (by statute, by common law, by custom/usage, affecting similar contract types)

Implied in Fact (affecting individual contracts)

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3
Q

What are some examples of implied terms by statute?

A

Working Time Regulations 1998

Commercial Agents (Council Directive) Regulations 1993

Sale of Goods Act 1979 / Consumer Rights Act 2015

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4
Q

Can implied terms in the Sale of Goods Act 1979 be restricted?

A

Implied terms for business-to-business contracts for the sale of goods.

Unfair Contract Terms Act 1977 restricts contracting out of these implied terms.

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5
Q

Can implied terms in the Consumer Rights Act 2015 be restricted?

A

Part 1 implies terms for business-to-consumer contracts for the supply of goods, digital content, or services.

Restricts the ability to contract out of these implied terms.

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6
Q

What are the key sections of implied terms in the Sale of Goods Act 1979 and Consumer Rights Act 2015?

A

Good title (s12 1979 Act / s17 2015 Act)

Conforming to description (s13 1979 Act / s11 2015 Act)

Satisfactory quality (s14 1979 Act / ss9-10 2015 Act)

Quality of goods sold by sample (s15 1979 Act / ss13-14 2015 Act)

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7
Q

What are the rules for contracting out of implied terms in the Sale of Goods Act 1979?

A

Unfair Contract Terms Act 1977 s20

s12 - No contracting out

ss13-15 - Only if fair and reasonable

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8
Q

What are the rules for contracting out of implied terms in the Consumer Rights Act 2015?

A

s31 - No contracting out

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9
Q

What are some examples of implied terms under common law

A

Duties in specific professions such as solicitors or accountants (duty of care).

Employment contracts contain duty of mutual trust/confidence.

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10
Q

What is a case reference for implied terms by custom?

A

William Morton & Co v Muir 1907.

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11
Q

When should terms be implied by custom?

A

If both parties would reasonably expect them.

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12
Q

What is the purpose of terms implied in fact?

A

To make contracts workable.

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13
Q

What is the business efficacy/necessity test for implied terms?

A

Ensuring the contract works as intended by the parties.

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14
Q

What is a case reference for the business efficacy/necessity test?

A

The Moorcock (1889).

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15
Q

What does Marks and Spencer v BNP Paribas (2016) emphasize about implied terms?

A

Non-reliance on actual party intention.

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16
Q

What is the reasonableness/officious bystander test for implied terms

A

Terms so obvious that they go without saying.

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17
Q

What is a case reference for the reasonableness/officious bystander test?

A

Southern Foundries v Shirlaw (1939)

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18
Q

What was the issue in Crawford v Bruce?

A

Rent review clause and issues of enforceability due to non-specification.

19
Q

What was the issue in J&H Ritchie v Lloyd Ltd?

A

Machinery defect and implied terms of quality and rejection rights.

20
Q

What was the issue in Aberdeen City Council v Stewart Milne Group Ltd?

A

Business efficacy and off-market sale with implications for implied terms.

21
Q

What is the test for implied terms?

A

Necessary for business efficacy or so obvious it goes without saying.

22
Q

What are some case references for the test for implied terms?

A

Acotec v McLaughlin (2016)

Marks and Spencer v BNP Paribas (2016)

23
Q

What is the focus of statutory control of contract terms?

A

How statutes ensure fairness in contract terms, covering both business to consumer and business to business contracts.

24
Q

What does the Consumer Rights Act 2015 replace?

A

The Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Contracts Regulations (1994, 1999).

25
Q

To which contracts does the Consumer Rights Act 2015 apply?

A

Contracts between traders and consumers (s61).

26
Q

How are “trader” and “consumer” defined under the Consumer Rights Act 2015?

A

Trader: Person acting for trade, business, craft, or profession.

Consumer: Individual acting outside their trade, business, craft, or profession.

27
Q

What must courts consider under s71 of the Consumer Rights Act 2015?

A

The fairness of consumer contracts even if not raised in proceedings.

28
Q

Are unfair terms and notices binding on consumers?

A

No, they are not binding on consumers (s61).

29
Q

What is the fairness test under s62 of the Consumer Rights Act 2015

A

Good faith requirement.

Significant imbalance in rights/obligations.

Detriment to the consumer.

30
Q

How is fairness determined under s62?

A

By the contract nature and circumstances at the time of agreement.

31
Q

What are some key cases related to unfair terms and notices?

A

ParkingEye Ltd v Beavis [2015].

Director General of Fair Trading v First National Bank plc [2001].

32
Q

What is required for fair and open dealing in consumer contracts?

A

Terms should be clear without hidden traps.

33
Q

What types of terms may be regarded as unfair?

A

Trader’s liability restrictions.

Unilateral decisions by the trader.

Disproportionate breach rights.

Restrictions on consumer’s litigation rights.

34
Q

When are terms not regarded as unfair under s64?

A

If they are transparent and prominent, including main subject matter terms and price comparison terms.

35
Q

How are ambiguous terms interpreted under s69?

A

They are not binding, but the rest of the contract continues.

36
Q

Can exclusion clauses exclude liability for death/personal injury from negligence under s65?

A

No, they cannot.

37
Q

To which contracts does the Unfair Contract Terms Act 1977 apply?

A

Businesses and certain contract types (e.g., sale, service).

38
Q

What does the Unfair Contract Terms Act 1977 affect?

A

Exclusions and restrictions on liability for breach of duty.

39
Q

Can liability for death/personal injury be excluded under ss. 2(1), 16(1)(a)?

A

No, it cannot be excluded.

40
Q

What happens to other liability exclusions under ss. 2(2), 16(1)(b)?

A

They have no effect if not fair/reasonable.

41
Q

What does volenti non fit injuria mean under ss. 2(3), 16(3)?

A

No injury consented to.

42
Q

What is the key point in George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983]?

A

The onus on proving fairness and reasonableness is on the enforcing party.

43
Q

What considerations are highlighted in Smith v Eric S Bush (A Firm) [1990]?

A

Equal bargaining power, external advice, task difficulty, loss bearing.

44
Q

What is the effect of standard form contracts under s17?

A

No effect if they exclude or restrict liability for breach or alter performance than agreed.

Private Law I (9 decks)

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