the types of terms

• what are terms as a whole?

  Terms in a contract describe the duties and obligations that each party assumes under their agreement. Terms can either be express or implied.
• What is an express term?

  Terms that have been specifically mentioned and agreed by both parties at the time the contract is made. They can either be oral or in writing
• What is an implied term?

  A term which has not been mentioned by either party will nonetheless be ‘included’ in the contract, often because the contract doesn’t make commercial sense without that term.
• What are the 3 types of terms?

  Conditions, warranties, innominate terms
• What is a condition?

  A condition is a major term that forms part of the contract. Failure to perform the obligation would destroy the main purpose of the contract
• what happens if a condition is broken?

  The contract can be repudiated, it can be ended; the aggriveted party can get recession from the courts, an equitable remedy which would put the parties into a pre-contractual position.
• what is the ratio of Poussard v Spiers 1876?

  it is an example of a condition being breached, and the contract came to an end.
• What case gives an example of a condition of a contract being breached, and so the contract ended?

  Poussard v Spiers 1876
• what is a warranty?

  A minor term of the contract. The contract is not ended so the mainpurpose of the contract can continue to be performed
• What is the remedy if a warranty is breached?

  Contract cannot be repudiated – The C can only claim damages only
• WHat is the ratio of Bettini v Gye?

  It is an example of a warranty being breached
• what case gives an example of a warranty being breached?

  Bettini v Gye
• What are the facts of Bettini v Gye?

  An opera singer was engaged for a series of performances under a contract, which stated he needed to be in London six days before for rehearsals. He missed the rehearsal due to illness; the D did not accept his services when he arrived. It was held that this was a breach of a warranty and not a condition and therefore the contract had not been discharged.
• what is an innominate term?

  A term that is unable to be classified as either a condition or a warranty until the contract has been breached. If the term is classed as a condition, the contract can be rescinded. If the term is classed as a warranty, damages only
• What is the ratio of Hong Kong Fir Shipping v Kawasaki Kisen Kaisha?

  The courts stated that in this case it wasn't clear whether the term was a condition or warranty due to the wording; however, it was decided that it was a warranty and awarded damages.
• What are the facts of Hong Kong Fir Shipping v Kawasaki Kisen Kaisha?

  The D chartered a cargo ship from C for two years. A term in thecontract required the ship to be “in every way fitted for ordinarycargo service”. There were problems with the ship. The C lost weeksof use whilst the ship was being repaired. The courts stated that it was not clear whether the term was a condition or a warranty base on its wording
• what factors are used to decide if a statement is a representation or a term?

  importance attached to the statement

  special skill or knowledge of the person who is making the statement

  any time lag between the statement and making the contract

  whether there is a written contract
• why is the importance of a statement used as a factor to decide if its a term or representation?

  Where the representation is obviously important to the contract thenthe courts will decide it is a term
• What is an example of the importance of a statement being used to distinguish between a representation and term?

  Couchman v Hill
• what is the ratio of Couchman v Hill

  it is an example of the importance of a statement being used to distinguish between a representation and term
• why is special knowledge of the statement maker used when distinguishing if a statement was a representation or term?

  The courts can give importance to the skill and knowledge of the person making the statement as this can help determine whether it was a mere representation or indeed a term of the contract
• What case gives an example of where the statement maker's knowledge was taken into account, and the statement was deemed as a term as a result?

  Dick Bentley v harold Smith
• What is the RD of Dick bentley v Harold smith?

  It gives an example of where the statement maker's knowledge was taken into account, and the statement was deemed as a term as a result
• what case gives an example of where the knowledge of the statement maker was used to distinguish if the statement was a representation or a statement, but it was deemed a representation?

  Oscar Chess v Williams
• what is the RD of Oscar chess v Williams?

  It gives an example of where the knowledge of the statement maker was used to distinguish if the statement was a representation or a statement, but it was deemed a representation?
• What case shows how the courts will assume anything that is intended to be a term will be written in a contract?

  Routledge v Mckay
• In terms of whether there is a written contract, and determining if a statement is a representation or a term, what is the RD of routledge v Mckay?

  The courts will assume anything that is intended to be a term of the contract will be written in it.
• Where a contract is made later and does not refer to the statement, itis likely that the statement does not become a term of the contract.
• in terms of time lag and deciding if the statement made was a representation or term, what is the RD of routledge v McKay?

  In the case of Routledge v Mackay there was a time delay of 7 days between the statement about the age of a car and it being bought. The time lag meant the statement was not important enough to be a term
• In which case was there a time delay of 7 days between the statement about the age of a car and it being bought. The time lag meant the statement was not important enough to be a term?

  Routledge v Mackay