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25 Cards in this Set
- Front
- Back
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What are the types of contractual terms? |
1. Conditions 2. Warranties 3. Innominate terms |
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What is an innominate term? Which case can be used to illustrate |
When the importance of the term is determined at the time of the breach (The Hansa Nord case) |
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What can statements made before a contract be? |
1. A term 2. Representation 3. Sales Puff |
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How can you distinguish a term from a misrepresentation? (Misrepresentations are not part of the contract) |
- Relative knowledge - Reliance placed on the statement - Strength of the statement |
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What is the statute surrounding misrepresentation? |
Misrepresentation Act 1967 |
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What is the remedy for breach of a condition? |
Repudiate (call off) contract, and claim for damages |
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What is the remedy for a breach of warranty? |
Claim for damages only. |
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How are terms incorporated into a contract? |
A) Express terms - contained within the offer and it becomes part of the contract B) Implied terms |
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When can terms be implied? |
1. By the courts for business efficacy (Moorcock case) 2. By custom in a particular trade or locality (Hutton v Warren) 3. By statute eg. Consumer Rights Act 2015. |
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What is business efficacy? |
When a term is obviously intended to be part of the contract, the court will imply the term. |
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Which contracts do the CRA 2015, and the SOG Act 1979 cover? |
CRA: Contracts with a consumer and a trader SOG: Business to business or consumer to consumer (ie. all other contracts) |
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What are the 5 implied terms for every sale of good? |
1. Right to supply/sell the goods 2. goods match the description 3. quality of good is satisfactory 4. Fit for purpose 5. Good/s match the sample These cannot be excluded in a consumer contract unless reasonable. |
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Exclusion clauses: What is the 3 stage test when an express term seeking to exclude one parties liability in the event of a breach? |
1. Is the clause incorporated? 2. Is it clear/unambiguous? 3. Is it valid under the Unfair Contract Terms Act 1977 (UCTA), and the CRA 2015 |
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Incorporation of exclusion clauses. Signing a document binds parties to exclusion clauses. What case? |
L'Estrange v Graucob. Implied terms by statute can be excluded in non consumer contracts. |
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For unsigned documents, how is the exclusion clause incorporated? What case? |
The clause must show that a reasonable person would think it to be part of the contract. (Chapleton v Barry) |
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When should notice of the exclusion clause be given for it to be incorporated? What case |
Before or at the time the contract was made Olley v Marlborough Court Hotel (exclusion was only made after the contract, therefore was not valid.) |
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Attempts to incorporate the clause after the contract was made will be ineffective. What case? |
Thornton v Shoe Lane Parking |
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What is the red hand rule? |
The more unreasonable an exclusion clause, the greater notice must be given of it. |
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How else can exclusion clauses be incorporated? What case? |
By previous course of dealings.. Photolibrary case: the courts found there had been consistent and regular course of dealings between the parties, and so the term was implied. |
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How many dealings by the parties is enough to imply a term? Which case? |
3-4 times over 5 years. Over 5 years is not deemed regular and so the term would have to be expressed. Hollier V Rambler. |
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Interpretation of exclusion clauses. Must consider : If incorporated, does the clause actually cover the breach. What case |
Andrew Bros v Singer and Co |
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What approach do courts take to interpretation? What is the latin name for this concept? |
If in doubt, they take a strict approach and interpret the clause against the party seeking to rely on it. (Contra proferentum) |
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What can exclusion clauses not include, under UCTA 1977? |
S2: cannot exclude death or personal injury through negligence S2: any other type of unreasonable loss or damage through negligence. |
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Statutory control of exclusion clauses under CRA 2015 |
S65 : A trader cannot restrict liability for death or personal injury resulting from negligence |
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Unfair contractual terms and notices in consumer contracts |
1. Some terms are automatically unenforceable for being so unfair. 2. Other contractual terms will be subject to a test of fairness 3. S.62: a contract is UNFAIR if it causes a significant imbalance in the parties rights to the detriment of the consumer. 4. S.64 terms specifying the subject matter of the contract/price are not subject to fairness test. |
