terms

• What does contract content define?

  Rights/obligations arising from the contract.
• What are the two types of terms in a contract?

  • Express terms: statements made by the parties intending to be bound.
  • Implied terms: not formed by statements but deemed to exist by law.
• What are express terms in a contract?

  Statements made by the parties, by which they intend to be bound.
• What are implied terms in a contract?

  Terms not formed by statements made by the parties but deemed to exist by law.
• What are the types of statements made during negotiations?

  • Mere puffs: statements of no legal effect.
  • Representations: statements of fact/law not intended to be binding.
  • Express terms: statements of fact intended to be binding.
• What is the legal effect of representations in negotiations?

  They help induce making of the contract and may lead to misrepresentation if untrue.
• What happens if express terms are unfulfilled?

  It amounts to breach where the innocent party can claim remedy.
• How do courts determine if a statement is intended to be binding?

  By applying an objective test regarding the parties' intentions.
• What is the prima facie ground for inferring a statement was intended to be a binding term?

  When a statement is made during negotiations for the purpose of inducing the other to enter a contract.
• How can the inference of a binding term be rebutted?

  By showing it would not be reasonable to hold them bound by the statement.
• What factors are considered when determining the importance of a statement in a contract?

  • The importance of the statement to one party.
  • Timing of the statement.
  • Reduction of the contract into writing.
  • Special knowledge/skill of the person making the statement.
• What indicates a statement's importance to one party?

  If the injured party would not have entered into the contract without that statement.
• How does the timing of a statement affect its status as a term?

  If made at the time of contracting, it is likely a term; if delayed, unlikely to be a term.
• What does it imply if a written contract makes no mention of a previous oral statement?

  It suggests the parties did not regard it as significant.
• How does special knowledge or skill of a person affect the status of a statement?

  It favors the other party if the statement maker has exclusive access to information or special knowledge.
• What happens if a statement is made by a party without expertise in the relevant field?

  The statement is not a term if made by a party without expertise.
• What indicates that a statement is a term in a contract?

  If the party making the statement had expertise and should have known the truth.
• When may a statement become a term due to assumption of responsibility?

  When the vendor expressly accepts responsibility for the soundness of the sale item.
• What are the possible outcomes when a statement is made in a contract?

  • Yes: statement = term (breach gives rise for claim).
  • No: statement = representation (if false, misrepresentation) or mere puff (no legal effect).
• How are express terms ascertained in a contract?

  • By determining what an objective observer would think parties intended to be bound by.
  • Statements of fact intended to be binding.
• How can express terms be incorporated into a contract?

  Through a signed written contract, notice, or course of dealing.
• What does signing a contract indicate?

  It shows parties intended to be bound by all contract terms.
• What is the exception to the binding nature of a signed contract?

  If the document signed wasn’t intended to have contractual effect.
• How does timing affect the contractual effect of a document?

  Timing is important; post-contractual documents are less likely to have effect.
• What happens if a party misrepresents the meaning of a clause in a signed document?

  They may be prevented from relying on the clause if they misrepresented its meaning.
• How can terms be incorporated by notice?

  By one party notifying the other party of them.
• What is required for terms to form part of a contract by notice?

  Logical reasonable steps must be taken to bring them to attention.
• How can terms be incorporated by reference to a different document?

  By reference to a different document containing the terms.
• What must be done for onerous/adverse terms to be incorporated?

  They must be brought to attention with reasonable notice.
• What happens if a document is signed with onerous terms?

  Party is bound to terms even if onerous if the document is signed.
• When must reasonable notice be given for terms to be binding?

  Before or at the time of contracting.
• What indicates that a customer is bound to terms when using a machine?

  When the customer puts money into the slot if terms were brought to notice beforehand.
• What is required for a document to have contractual effect?

  It must be intended to have 'contractual effect'.
• What happens if notice is insufficient regarding a clause?

  Clause is not incorporated if notice is insufficient.
• What is meant by a course of dealing in contract law?

  • Consistent dealings over a period of time.
  • Must be regular and not occasional.
• What happens if a clause has been brought to a party's notice during previous dealings?

  It is implied into the current transaction to reflect presumed intentions.
• What are entire agreement clauses in contracts?

  • Clauses that state a particular set of documents constitutes the entire agreement.
  • Supersedes any previous understandings or arrangements.
• What do entire agreement clauses limit or exclude?

  • Liability for own breach by terms incorporated by reference or course of dealing.
  • They may leave a party with reduced remedy in the event of breach.
• When will courts uphold entire agreement clauses?

  When they avoid misunderstanding about the scope of the agreement.
• What are implied terms in contract law?

  • Material terms not expressed but inferred by the courts.
  • Binding to the same extent as express terms.