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Contract - Terms

Terms

QuestionAnswer
What is a puffery/representation statements made in negotiations that aren't part of a contract
Andrews v Hopkinson Consider importance, timing, expertise when determining if something is incorporated into a contract
Bannerman v White Due to importance of statement, it is a term of the contract (hops not to be treated with sulphur)
Oscar Chess v Williams Aren't expert so statement is a representation not a term
Dick Bentley v HS Motors They are the expert so statement is a term of the contract
Shawel v Reade A guarantee is a term
What is the Parol Evidence Rule? If written contract, the writing constitutes the whole contract unless it is partly written and partly oral
J Evans & Son v Andrea Mezario Ltd Contract was partly written and partly oral, so the parol evidence rule cannot apply (container shipped on deck & fell off)
What are 'entire agreement' clauses? Parol Evidence rule made useless - outlines the only terms that apply
What are the different types of terms? Express, Implied, Condition, Warranty, Innominate
What are express terms? Terms that are stated/written
Lestrange v Graucob Where a party has signed a written agreement, they are bound by that agreement
What ways can terms be implied? Common law, Custom, Prior Dealings, Statute
M&S v BNP Paribas Overview of factos for implied terms e.g. implied if contract lacks practical coherence without it (Moorcock)
The Moorcock Implied by common law (M&S) - contract lacks practical coherence without implied term that it would be safe at mooring
Hutton v Warren Implied by custom - entitled to an allowance for seed and labour
Hillas v Arcos Implied by prior dealings - timber contract
Shirlaw Officious Bystander test - term is implied because its so obvious it goes without saying
What are Conditions? Important terms that go to the root/heart of the contract
What is the effect of breach of a condition? Contract able to be repudiated, and damages awarded
Poussard v Spiers Breach of condition allowed the contract to be repudiated - opera singer
What is a Warranty? Less important terms that don't go to the root/heart of the contract
What is the effect of breach of a warranty? only damages awarded - contract not repudiated
Bettini v Gye Breach of warranty - hirer of opera singer could only claim for compensation
What are Innominate terms? Term that is treated as a condition/warranty dependant upon the consequence of its breach (at courts discretion)
Hong Kong Fir v Kawasaki Innominate term about ship seaworthiness - court deemed term a warranty - only damages awarded
Advantages of having innominate terms Flexibility
Disadvantages of having innominate terms Inconsistent (hard to advise), non-democratic judges
Bunge Corp v Tradax* Lord Scarman outlines types of terms
Schuler v Wickman Court didn't allow term about visits to dealers to be treated as a condition - unreasonable (court has power to overule)
SOGA 1979
SOGSA 1982
CRA 2015
SOGA s12 Right to sell
SOGA s13 As Described
Re Moor & Landauer not as described - peaches packed as 24 not 30 - before 15(a) so could repudiate even though minor breach
SOGA s14(2) Satisfactory Quality
SOGA s14(3) Fit for purpose
Baldry v Marshall Bugatti wasn't fit for purpose
SOGSA s13 Reasonable Care and Skill
Wilson v Best Travel Glass doors in greek hotel ok by local standards (s13 SOGSA)
Thake v Maurice Vasectomy done with care and skill but failed (s13 SOGSA)
SOGSA s14 Reasonable time
CRA s9 Satisfactory quality
CRA s10 Fit for specified purpose
CRA s11 As described
CRA s49 Reasonable skill - services
CRA s52 Reasonable time - services
CRA s20 Remedy for breach: Right to reject - short term 0 30 days
CRA s23 Remedy for breach: Repair/replacement in reasonable time
CRA s24 Remedy for breach: price reduction/final right to reject
CRA Traders right to... repeat performance/price reduction, reasonable payment & service remdies?
Created by: Oscar.G
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