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30 Cards in this Set
- Front
- Back
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What is the parol evidence rule
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In written contracts this rule provides for the exclusion of any extrinsic evdence (that not included in the wording of the contract)
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What are the exceptions to the parol evidence rule (6)
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1. Custom or usage
2. evidence of oral agreement to suspend contract until some specified event has occured 3. extrinsic evidence shows the contract is invalid (i.e. incapacity) 4. written contract inaccurately represents the oral agreement 5. separate collateral contract 6. written contract wasn't intended to reflect the whole agreement |
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Is the test for distinguishing between tems and representations subjective or objective
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Objective - what would a reasonable person consider the intention was
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What factors are considered when distinguishing between tems and representations (4)
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1. Timing
2. importance 3. whether included in the written contract 4. special knowledge and skill |
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Case which established the shorter the time between making a statement and the contract being made the more likely the statement is to being a term
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Routledge v Mackay (1954)
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Case where one party made clear the matter was of critical importance (hops)
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Bannerman v White (1861)
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How can terms be implied into a contract (3)
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1. courts or law
2. statute 3. custom |
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Which case demonstrates the business efficacy test
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The Moorcock (1889) - implied term that the riverbed would be safe for the purposes of mooring a ship
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What is the business efficacy test?
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test which looks at whether the contract will be workable without the proposed implied term
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Case which established the "officious bystander" test for implying terms
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Shirlaw v Southern Foundaries Ltd (1939)
Mr Shirlaw had been MD. Another company took over the business and altered the constitution to allow the removal of any director & sacked Mr Shirlaw whosecontract, signed in 1933 stated that he was to remain in post for 10 years. |
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What is the officious bystander test
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something so obvious it goes without saying..."oh of course"
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Case involving terms implied by law - tenanted building to be kept in reasonable repair
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Liverpool City Council v Irwin (1976)
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Define terms implied by law
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If terms normally exist in contracts of that type and the contract is silent on the matter. A commo term for certain types of contract.
Case becomes a precedent for all subsequent similar contracts |
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Which statute implies terms into contracts for sale of goods
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Sale of Goods Act 1979 (amended by Sale and Supply of Goods Act 1994)
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Which statute implies terms into contracts of hire and for supply of goods
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Supply of Goods and Services Act 1982
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What are the key implied terms in SGA 1979 (5)
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1. Title/ right to sell (12)
2. Goods will correspond to description (13) 3. Satisfactory quality (14) 4. Fit for purpose (15) 5. Sale by sample - a) bulk will correspond to sample b) free from unsatisfactory defect |
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What is the main purpose of the Unfair Contract Terms Act 1977
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To ensure that the terms implied by SGA1979 cannot be excluded when the buyer is a consumer
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Define consumer (3)
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1. buyer is not making a contract "in the course of business"
2. the seller does make the contract in the course of business 3. the goods are ordinarily bought for private use or consumption |
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If implied statutory terms are excluded in commercial contracts what is the test that they must pass
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the test of reasonableness s11 UCTA 1977
"the term shall be a fair and reasonable one having regards to the circumstances which were, or ought to have been known or in the contemplation of the parties" |
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What is the term implied under s13 SGSA 1982 where the supplier is a business
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that the supplier will carry out the service with reasonable care and skill.
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Define condition and warranty and what the remedies are for breach
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A condition is a term which is of fundamental importance to the contract and allows repudiation of the contract and damages
a warranty is collateral to the main purpose of the contract and allows damages only |
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2 opera based cases highlighting the differences between conditions and warranties
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Poussard v Spiers and Pond (1876) - singer unable to appear
Bettini v Gye (1876) - singer missed 3 rehearsals |
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If a term is neither a condition or a warranty what is it
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Innominate (or intermediate) term. It lies somewhere between a condition and a warranty
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Case which first conceived the notion of an "innominate term"
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Hong Kong Fir Shipping (1962) - ship not seaworthy but C not entitled to repudiate just to receive damages for the 20 weeks lost
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Poussard v Spiers and Pond (1876) - singer unable to appear
Bettini v Gye (1876) - singer missed 3 rehearsals |
2 opera based cases highlighting the differences between conditions and warranties
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Liverpool City Council v Irwin (1976)
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Case involving terms implied by law - tenanted building to be kept in reasonable repair
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Bannerman v White (1861)
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Case where one party made clear the matter was of critical importance (hops)
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The Moorcock (1889) - implied term that the riverbed would be safe for the purposes of mooring a ship
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Which case demonstrates the business efficacy test
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Routledge v Mackay (1954)
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Case which established the shorter the time between making a statement and the contract being made the more likely the statement is to being a term
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Shirlaw v Southern Foundaries Ltd (1939)
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Case which established the "officious bystander" test for implying terms
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