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Contract - Terms
Terms
| Question | Answer |
|---|---|
| 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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