Express

• express terms

  -> type depends on the evidence, particularly any description of the term in the contract-> any terms that arent clearly conditions/warranties are innominate terms

  ->distinction important because it determines actions available should there be a breach.
• conditions (1)

  ->most important/root of the contract

  • if breached, they deprive the party of the main benefit of the contract
  • the other party can then repudiate and/or sue for damages

  poussard v spiers and pond- inability to sing the lead role in the first performances was breach of contract and opera house could repudiate
• conditions (2)

  -> terms will be considered a condition of it is to maintain certainty in commercial contracts

  The Mihalus Angelos - expected ready to load date was a condition despite the fact it had not caused loss to the defendant

  • need for commercial certainty in shipping contracts
• types of breach

  • anticipatory breach -> one party refuses to honour their promise before its due to be fulfilled

  -> demonstrating intent to breach contract- hochester v de la tour

  • actual breach -> failed to perform obligation included in the contract

  -> obligation in contract not performed to the required standard - bettini v gye // poussard v speirs and pond
• warranties

  • minor term of contract-> if warranty breached, can only claim damages
  • contract not ended and main purpose of contract can still be performed despite the breach-> does not entitle repudiation

  bettini v gye -> failed to attend rehearsals and breached contract- theatre could only claim damages and the singer could continue the contract
• innominate terms (1)

  • neither a condition or a warranty- decide the effect of this term by looking at the consequences of breach
  • breach serious consequence= condition so can repudiate contract
• innominate terms (2) -- hong kong fir shipping v kawasaki kisen kaisha 


  -> not all terms can be divided- classification depends on breach -> had not been deprived of whole benefit so breach did not justify repudiation

  -> even where parties themselves have classified the term as a condition, courts can rule otherwise-> only minor and doesn't give rise to repudiation
• innominate terms (3)

  • some cases, innocent party may be liable for wrongful repudiation if they treat the contract as finished but the court finds the breach did not deprive them substantially of the whole benefit of the contract

  schuler v wickman tools -> despite the contract stating the term was a condition, HoL found it was only a breach and not significant enough to allow repudiation
• distinction between a term and representation

  • sometimes one party makes a representation on which the other party is relying on, but it is not included in the final contract

  A-> importance attached to representation

  B-> special knowledge or skill of person making the statement

  C-> time lag between making statement and making contract

  D-> whether there is a written contract
• A-> importance attached to representation 


  -> if great importance to statement made during negotiations, more than likely to be considered a term

  Couchman v Hill -> important to purchaser of the animal so became term not representation

  Birch v Paramount estates -> CoA- statement was crucial in forming contract so became a term
• B-> special knowledge or skill of person making the statement 


  -> if one party makes a specific representation due to their level of expertise and the other party relies on it, it becomes a term

  • more likely to be a term if representor has special skill/knowledge

  Oscar Chess v Williams -> sellers statement was an innocent representation and dealer should have spotted error

  Dick Bentley v Harold Smith Motors -> mileage was a term of the contract and purchaser could sue for breach because it relied on defendants expertise
• C-> timelag between making statement and making contract

  -> when made later and doesn't refer to the statement-> unlikely to be a term

  -> lapse of time makes it unfair for representation to be a term

  Routledge v McKay -> lapse of time gave purchaser the choice to check the representation- presumed actual date was not important because it didnt appear in the contract as it was not intended to be a term

  • gap means unfair to make representation part of contract
• D-> whether there is a written contract


  -> if they've put contract into written form, it then presumes everything the parties wanted is in the contract

  -> if its signed, courts presume parties have read and agreed to its contents

  routledge v mckay // L'estrange v graucob

  -> if party is unaware of a term which is later used upon by one of the parties who knew of the time-> unlikely to be actionable

  ->depends on term and impact of its operation