terms and representations

• terms - provisions of the contract which define the obligations of each parties
• express terms - terms that are expressly stated within the contract and are agreed upon by the parties
• implied terms - terms that are not expressly states but are assumed to exist due to context, custom or law
• conditions - fundamental terms of the contract and a breach will result in contract termination
• warranties - minor terms in the contract - if breached they entitle damages
• innominate terms - terms that can either be conditions or warranties and depend on the severity of the breach
• mere puffs - statements that are exaggerated to make one party more likely to enter into the contract
• representations - pre contractual statements that are made to induce a party into a statement
• terms can help identify context and legal relationships between the parties
• types of contracts - consumer to consumer - business to business - business to consumer
• things within a contract - recitals - definitions - financial issues - rights and duties of the parties - exclusions and limits on liability - dispute resolution
• why cases might come to court - poor drafting - ambiguity in terms - omissions from the contract - no clear articulation of meanings
• puffs have no legal status and do not give rise to a legal outcome
• dimock v hallett - farm described as having fertile lands this was not true but held to be a mere puff and not binding
• carlill - mere puffs - smoke ball
• if the statement was a term or representation depends on the intention that the statement was made with
• use of the objective approach to decide if representation or term
• guiding principles for representations - verification - if it was written down - importance - special knowledge- time elapsed
• parole evidence rule is used with express terms
• parole evidence rule - if the contract is written then there should be no difficulty in ascertaining terms
• jacobs v baravia and general plantains trust - use of parole evidence rule
• exceptions to parole evidence rule - no exclusivity of intention, ambiguity in interpretation, proof of custom forming in background of contract, rectification, identity of parties, proof of commencement or cessation of contract
• importance of signatures in written contracts - important to show assent to the terms
• when courts are asked to interpret contracts they will take the objective approach
• principles for contractual interpretation - what would the reasonable person do - does the background effect the language - exclude prior negotiations - must be presumed that people do not make linguistic mistakes
• why may court imply terms - construction and interpretation
• implied by courts or by fact - use of the officious bystander test
• requirements to imply terms - reasonable and equitable- necessary to give effect to contract - obvious that it goes without saying - capable of clear expression - not contradict express terms of the contract
• implied by law often refers to - consumer rights act 2015 - sale of goods act 1979 - supply of goods and services 1982