Contractual Terms

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Express Terms
Terms specifically agreed upon by parties and contained in the offer. By acccepting the offeree agrees to the terms proposed by the offeror
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Implied terms
Terms put into the contract ether by courts or by statute without the parties needing to express them. E.g. Sale of Goods Act 1982 (implied that goods will be of good quality)
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Expert statement vs. non expert statement of terms
If an expert makes a statement it is likely considered by courts as a term. If it is by a non-expert it is a representation (See Oscar Chess v Williams 1957)
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A statement made strongly vs. guarded
If made strongly/or if party receiving statement demonstrated that statement very important to him = term. If guarded/less relevant = representation
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Collateral contract
A promise may be contractually binding not in the 'main' but the 'collateral contract'. If A wants to buy house and asks if drains work and B says yes, then by signing contract for house a 2nd contract exists that the drains will be working
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Implied Rule Test
If parties to a contract reacted to a bystander who suggested that the term should be expressly included = if they replied that term so obvious that it needn't be included - the term would b implied
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Expectations of honesty
Parties should not engage in improper, commercially unacceptable conduct
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Customary Terms
Terms "customary" in a particular trade or profession. or in a particular locality. Court assumes that parties intended these terms to be part of contract vis-a-vis custom. Customary terms recognised as binding. Express exclusion of custom effect
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Breach of term
Injured party can claim damages for breach f contract and may be able to treat contract as repudiated and refuse performance of the contract
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Condition
Important term, if breached- the injured party can claim damages & repudiate contract, even if minor breach
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Warranty
Not vitally important to contract- injured party can only claim damages.
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Innominate/intermediate terms (Lord Diplock 1962)
If term so wide-spanding that it would create absurd results if broken. If breached the injured party can treat the contract as repudiated only if he has been deprived substantially of the whole benefit of the contract
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Exclusion/exception clauses
Clause trying to exempt or exclude one persons liability. They are inserted by the party with greater bargaining power. An exclusion must be a term of a contract, it must be agreed before a contract is made
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Occupiers liability act 1957
- if consumer suffered loss (not death) caused by trader's negligence when service not being provided the trader would be liable in tort of negligence
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Unfair Contract Terms Act 1977
Used to avoid unjust effects of exclusion clauses. Only applies to non-consumer contracts. Empowers a court not to enforce exclusion clauses where they are unreasonable (e.g. re the relative strength of the parties bargaining positions)
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Consumer Rights Act 2015
Applies to consumer contracts - not limited to exclusion clauses: all terms can be subject to a test of fairness e.g. imbalance in parties' rights and obligations
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Other cards in this set

Card 2

Front

Terms put into the contract ether by courts or by statute without the parties needing to express them. E.g. Sale of Goods Act 1982 (implied that goods will be of good quality)

Back

Implied terms

Card 3

Front

If an expert makes a statement it is likely considered by courts as a term. If it is by a non-expert it is a representation (See Oscar Chess v Williams 1957)

Back

Preview of the back of card 3

Card 4

Front

If made strongly/or if party receiving statement demonstrated that statement very important to him = term. If guarded/less relevant = representation

Back

Preview of the back of card 4

Card 5

Front

A promise may be contractually binding not in the 'main' but the 'collateral contract'. If A wants to buy house and asks if drains work and B says yes, then by signing contract for house a 2nd contract exists that the drains will be working

Back

Preview of the back of card 5
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