general terms

• Consumer contracts


  Agreements between consumers and businesses for the purchase of goods and services. They outline the rights and responsibilities of both parties and provide legal protection for consumers.
• What do general terms focus on?


  - Expressed terms

  - Implied terms

  - Conditions

  - Warranties

  - Innominate terms
• Expressed terms


  These are terms which have been specifically agreed to by both parties.
• Implied terms


  These are not expressly discussed between parties but are terms that both parties would have intended for be included. Implied terms can also be implied into a contract by common law or by statute.
• Conditions


  A term that is central to a contract, with high importance
• Poussard v Spiers and Bond


  A breach of this term will end the contract (repudiation).

  
  

  A judge may impose a remedy of 'recession' (places parties back in their pre-contractual position).
• Warranty


  A minor term of the contract
• Bettini v Gye


  A breach of a warranty will allow a claim for damages (compensation), however the contract will remain in place. There is no right to repudiate (end) the contract.
• Innominate term


  A term that does not fall under 'condition' or 'warranty'.
• Hong Kong Fir Shipping


  The consequences of a breach of an innominate term will depend on the severity of the breach. Its severity will determine whether to treat the term like a condition or a warranty.
• What do the courts consider when deciding whether we have a term or mere representation?


  1. Importance of representation

  2. Special knowledge or skill of the person making the statement

  3. Time lag between the statement and contract

  4. Whether there is a written contract
• Couchman v Hill


  If a statement is obviously important, it will be seen as a term of a contract.
• Oscar Chess v Williams


  The level of skill held by an individual will affect whether it is a representation or a term.
• Routledge v Mackay (time lag)


  If a contract is made some time after the negotiations, and it does not refer to a statement made during those negotiations, it is likely that the statement will not become a term of the contract.
• Routledge v Mackay (written contracts)


  The Courts tend to presume that everything the parties wanted to include is written as a term of the contract.
• Two-part test to make sure that the contract works on a business-like basis

  1. Business efficacy

  2. Officious bystander test
• Business efficacy


  The Moorcock: Is the term necessary to make the contract effective?
• Officious bystander test


  Shell v Lodstock Garage: Would the parties to the contract have agreed that the suggested term was obviously going to be in the contract?
• Egan v Static Control Components


  Implied terms reflect the clear intention of the parties and are assessed considering what a reasonable person would have understood the intention to be.
• Hutton v Warren


  Local customs will be implied into contracts.
• Hillas v Arcos


  Prior conduct of the parties may indicate terms to be implied.