Terms and Representations
- Created by: huth0
- Created on: 06-03-17 15:36
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- Terms and Representations
- Terms
- No distinct interval between making the statement and making the contract would suggest a term
- If one party attached special importance to the statement then that would suggest a term
- Bannerman v White 1861
- A statement made by a party who has special knowledge or skill, compared to the other party, is more likely to be a term
- **** Bentley v Harold Smith 1965
- A strong statement is more likely to be a term
- Schawel v Reade 1913
- Express Terms are terms actually referred to explicitly by the parties
- Terms can be incorporated into a contract by signature
- L'Estrange v Graucob 1934
- Terms can be incorporated through reasonable notice
- Contractual in nature? Chapelton v Barry UDC 1940 - Not reasonable
- Enough done to bring to the attention of other party? - Thompson v L M & S Railway 1930 - blind but was reasonable in general
- Notice must be made before or at the time of making the contract - Thornton v Shoe Lane Parking 1971 - Terms on ticket after acceptance
- If parties dealt regularly and consistently with each other over a sufficient period of time, then a term may be incorporated
- Spurling v Bradshaw 1956 - Terms always on delivery note
- However, McCutcheon v David MacBrayne 1964 - variation in terms over time
- Spurling v Bradshaw 1956 - Terms always on delivery note
- Terms can be incorporated into a contract by signature
- Implied Terms are not stated by the parties but nevertheless form part of the contract
- Statute's such as The Consumer Rights Act 2015 add certain terms to contracts covered by the act
- S9 - goods supplied will be of 'satisfactory quality'
- S10 - goods supplied will be fit for their purpose
- S11 - goods supplied will match their description
- The courts may imply a term in law
- Liverpool City Council v Irwin 1977
- The courts may imply a term in law
- S11 - goods supplied will match their description
- S10 - goods supplied will be fit for their purpose
- S9 - goods supplied will be of 'satisfactory quality'
- Sale of Goods Act 1979 (as amended by Sale and Supply of Goods Act 1994)
- S12 - that the seller has a right to sell the goods
- S13 - that the goods will match the description given by the seller
- S14(2) - that the goods supplied will be of 'satisfactory quality'
- S13 - that the goods will match the description given by the seller
- S12 - that the seller has a right to sell the goods
- Statute's such as The Consumer Rights Act 2015 add certain terms to contracts covered by the act
- Terms can also be implied because it is customary that the parties should deal on that basis
- Hutton v Warren 1836
- Terms can be implied as fact.
- The 'business efficiency' test asks whether the term was necessary to give the contract business efficacy
- The Moorcock 1889
- The officious bystander test is used to determine what the intention was. Must be obvious that both parties would have agreed to it
- Shirlaw v Southern Foundries 1939
- A term will not be implied simply because it is reasonable in the circumstances but only where it is a matter of strict necessity
- AG of Belize v Belize Telecom 2009
- The 'business efficiency' test asks whether the term was necessary to give the contract business efficacy
- Conditions are major terms of the contract
- If breached the innocent party is entitled to repudiate the contract and claim damages
- Poussard v Spiers 1876
- Warranties are minor terms which are not central to the existence of the contract
- If breached the innocent party may claim damages but not end the contract
- Bettini v Gye
- Innominate terms are identified when there is nothing to indicate what kind of term it is but some breaches of it could have a serious effect on the other party
- If he has been substantially deprived of the whole benefit of the contract then he may be allowed to treat the contract as at an end and/or claim damages
- Hong Kong Fir Shipping 1962
- Representations
- Definite time interval suggests a representation
- Routledge v McKay 1954
- Where a verbal agreement is later recorded in writing, but a statement made vocally is not included, then that would suggest a representation
- Routledge v McKay 1954
- A statement made by a party who has less knowledge or skill, compared to the other party, is more likely to be a representation
- Oscar Chess Ltd v Williams 1957
- A weaker statement is more likely to be a representation
- Ecay v Godfrey 1947
- Definite time interval suggests a representation
- Terms
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