Distinguishing terms from representations

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Contract can contain ‘express’ terms and ‘implied’ terms.
‘Express’ – Are those expressly agreed (whether written down or not). ‘Implied’ – Are those terms that parties have not expressly agreed on.
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What is a 'Puff'?
Something one of the parties says that has no legal consequence e.g. that suit would look great on you
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Why is it important to distinguish between terms and representations?
If statement is held to be a ‘term’ of the contract, a failure to comply with it will be a breach of contract. Innocent party will be entitled to a remedy for breach. If statement is held to be ‘(mere) representation’, the innocent party cannot cl
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What is the difference between a term and a representation?
Term’ versus ‘representation’: ‘term’ involves a promise as to the truth of the statement, whereas a ‘representation’ involves no such promise as to truth, although it does induce the making of the contract.
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How does one decide whether statement is ‘term’ or ‘representation’?
it depends, ultimately, on the intention with which the party made the statement. This is an objective test – and the court has developed several principles. BUT no one principle is decisive: it is a matter of judgement.
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Principle 1.- verification
Statement unlikely to be term if the party making it asks the other party to verify it. In contrast, if the maker of the statement gives assurance that there is no need to verify, statement is probably term.
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What are good cases when looking at varification?
Ecay v Godfrey (1947) 80 Ll LR 286 – seller of boat: “Have it surveyed!” Schawel v Reade [1913] 2 IR 64 – seller of horse: “The horse is sound; otherwise I would tell you!”
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Principle 2- importance
Statement likely to be a term where it is of such importance to the person to whom it is made that, had it not been made, she would not have entered into the contract.
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What are good cases for looking at importance?
Couchman v Hill [1947] KB 554 – heifer on auction. Buyer not interested if in calf. Statement that it was not in calf, but is actually was. Bannerman v White (1861) 10 CBNS 844 – farmer’s assurance that hops had not been treated with sulphur.
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Principle 3- special knowledge/expertise
If the maker of the statement has some special knowledge/skill compared to the other party, statement probably term. If parties have equal knowledge or the person to whom the statement is made has greater knowledge, more likely to be representation.
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What are good cases for looking at representation?
Oscar Chess Ltd v Williams [1957] WLR 370 – buyer car dealer. Seller made statement as to model. **** Bentley Productions Ltd v Harold Smith (Motors) Ltd [1965] 1 WLR 623 – seller car dealer. Seller made statement as to mileage.
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Principle 4- Status
Beale v Taylor [1967] 1 WLR 1193 - seller and buyer have the same status. Esso v Mardon [1976] QB 801 – franchisor had more experience and expertise.
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Principle 5-Time
the closer in time the statement was made and the time the contract was concluded, the more likely the statement will be treated as term.
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What is a good case for looking at time?
Routledge v McKay [1954] 1 All ER 855 – seller of motorbike states that it is a 1942 model; sale takes place 5 weeks later.
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Other cards in this set

Card 2

Front

What is a 'Puff'?

Back

Something one of the parties says that has no legal consequence e.g. that suit would look great on you

Card 3

Front

Why is it important to distinguish between terms and representations?

Back

Preview of the front of card 3

Card 4

Front

What is the difference between a term and a representation?

Back

Preview of the front of card 4

Card 5

Front

How does one decide whether statement is ‘term’ or ‘representation’?

Back

Preview of the front of card 5
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