Express terms

Cards (12)

  • Terms define the rights and obligations of the parties in the contract. The terms can be categorized into three parts. Part 1 = Express terms Part 2 = Implied terms Part 3 = Exclusion clauses.
  • Express terms - Oral or written
    These terms are stated by both parties and they can do that orally or writing. Then express terms can be classified into conditions, warranties and innominate terms.
  • Conditions (Puussand v Spiers)
    These terms go to the root of the contract. This can create a major breach in the contract, so much you can terminate the whole thing
  • Warranty (Bettini and Gye)
    This causes a minor breach compared to condition. The innocent party could claim damages but they couldn't terminate the entire contract.
  • Innominate terms
    This is a unclassified term. This asks whether the innocent party to the breach was deprived substantially of the whole benefit. This falls between conditions and warranties.
  • Representations = These are statements of facts or opinion made by one party to the other. They are not usually binding.
  • Term = These are specific terms and conditions of the contract. They can be express or implied terms. Terms are legally binding because they include specific terms in the contract, that both of the parties both agree to.
  • Importance attached to representation (couchman v Hill) Representation forms the basis of an agreement or is relied upon heavily in negotiation. Its a term
    But a term because it was important to the contract.
  • Special knowledge or skill affective the equality of bargaining power - Express terms that have been agreed to
    (Oscar chess Ltd) - Warranty age of car. Not expert misrepresentation
    (Dick Bentley v Harold Smith) - Innocent misrepresentation. (expert). Claimant relied upon expertise.
  • Time between making the statement and formation
    The longer you go to report something the court believes that it is less and less important. (Routledge v Mckay) - Difference between a term and a representation. Time for a contract
  • Whether it is in writing (Routledge v Mckay)
    It it is in writing then it is a term. It it is not written its not a term. Assume not a term
  • Trade puffs
    Not to be considered terms. Exception seen in (Carbolic v carbolic Smoke ball). Puffs are boasts or unsubstantial claims. Exaggerated and easily identifiable.