Terms

• What are contract terms?

  Terms & Representations = statement of opinion/fact, immaterial to the contract.

  General = obligation, if broken, it’s a breach.
• How do you decide if it's a term or representation?

  Importance: Couchman v Hill

  Knowledge of individual making statement: Chess v Williams V Bentley v Harold Smith Motors

  Time lag between making statement and contract: Routledge v Mackay

  Whether the contract has been written down
• What is a condition in contract terms?

  A central term that is crucial to the contract
• What case illustrates a condition in contract terms?

  Poussard v Spiers & Pond
• What is a warranty in contract terms?

  A minor term that can be breached
• What case illustrates a warranty in contract terms?

  Betting v Gye
• What is an innominate term?

  An undefined term whose breach depends on severity
• What case illustrates an innominate term?

  Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd
• What are terms implied by common law?

  • Business efficacy: The Moorcock & Officious Bystander Test.
  • Necessary for contract effectiveness.
  • Parties would have agreed on the term.
• What are terms implied by custom?

  • Based on local, national, or industry customs.
  • Established through Hutton v Warren.
• What are terms implied by prior dealings?

  • Established through previous interactions.
  • Illustrated in Hillas v Arcos.
• What are terms legally implied by statute?

  • Consumer v Trader
• What is the under s9 of the Consumer Rights Act 2015?

  right of satisfactory quality
• What comes under s10 of the Consumer Rights Act 2015?

  Right of fitness for a particular purpose.

  Grant v Australian Knitting Mills// Griffiths v Peter Conway Ltd
• What comes under s11 of the Consumer Rights Act 2015?

  Right relating to description of goods: Re Moore & Co
• What are the remedies for breach of term?

  s.20: short term right to reject (within 30 days)

  s.23: right to repair or replacement (identical or refund)s.24: right to price reduction or reject
• What comes under s49 of the Consumer Rights Act 2015 in relation to supplying services?

  Right to reasonable care & skill
• What comes under s52 of the Consumer Rights Act 2015 in relation to supplying services?


   Right to performance within a reasonable time
• What are the remedies for breach of term to supply services?

  s.55: right to repeat performance

  s.56: right to a price reduction (only if repeat performance is impossible or trader is in breach of repeat performance due to an unreasonable time delay or interference to the consumer)
• What is an exclusion clause?

  A term preventing liability for a breach
• What are the ways an exclusion clause can be incorporated into a contract?

  • Signed agreement (L’Estrange v Graucob)
  • UNLESS Oral misrepresentation (Curtis v Chemical Cleaning & Dyeing Co)
  • Awareness before contract (Olley v Marlborough Court Hotel)
  • Previous dealings (Hollier v Rambler Motors)
• What is the Contra Preferentem Rule?

  Ambiguity in terms is interpreted against the introducer
• What does the Unfair Contract Terms Act protect against?

  Exclusion clauses in non-consumer contracts
• What does section 2(1) of the Unfair Contract Terms Act state?

  No exclusion for death or personal injury from negligence
• What does section 2(2) of the Unfair Contract Terms Act state?

  Regarding other loss or damage, a person cannot exclude or restrict liability for negligence, except where the term satisfies requirements of reasonableness OBJECTIVE
• What is the Knowledge Test in the Three Tests of Reasonableness?

  It assesses the knowledge of the parties involved: Smith v Eric Bush
• What does the Breach of Implied Conditions Test consider?

  Relative bargaining strength, inducements, knowledge, likelihood of compliance with term, special order goods.
• What is the Limitation Clauses Test?

  A term that sets an upper limit on breach: George Mitchell v Finney Lock Seeds
• What does section 31 of the Consumer Rights Act 2015 state?

  Liability that cannot be excluded or restricted regarding sale of goods.
• What does section 57 of the Consumer Rights Act 2015 prohibit?

  Exclusion of liability for services
• What does section 65 of the Consumer Rights Act 2015 state?

  No exclusion for death or personal injury from negligence
• What is the Fairness Test in section 62 of the Consumer Rights Act 2015?

  It assesses whether a term is fair
• What does s11 of the Unfair Contracts Act give guidelines for?

  What is reasonable in all the circumstances: Warren v Truprint