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33 Cards in this Set

  • Front
  • Back

Definition of Terms

Terms are contractual statements within the contract

Definition of Representation

Representations are pre-contractual statements given before the contract is entered into

Remedy for breach of terms

Sue for breach of contract

Remedy for false representation

Sue for misrepresentation

Remedy for representations that seem like a term of the contract

Courts use guidelines to identify terms and representations. They look for evidence of an intention by one or both parties that there should be contractual liability in respect of the accuracy of the statement. If so, the representation may be a term

Guideline 1

If one party shows that the statement was very important, it is likely to be a term

Bannerman v White [1861]

Rule of Law: If one party shows that the statement was very important, it is likely to be a term




Case info: C only agreed to purchase a product on the term that it had not been treated with sulphur. He communicated the importance of the term and relied on the statement.

Guideline 2

If a long time has passed between the statement and the entering into the contract, the court is likely to view the statement as a representation

Guideline 3

If a formal contract is drawn up, and the statement is not included, then it is likely to be a representation

Guideline 4

If the person making the statement has expert knowledge of skill, or is more able to verify the truth, as compared to the other part, the statement is likely to be viewed as a term

Dick Bentley Productions v Harold Smith Motors [1965]

Rule of Law: If the person making the statement has expert knowledge of skill, or is more able to verify the truth, as compared to the other part, the statement is likely to be viewed as a term




Case info: C relied on the advice given by the D to purchase a car

Oscar Chess Ltd v Williams [1957]

Rule of Law: If the person making the statement has expert knowledge of skill, or is more able to verify the truth, as compared to the other part, the statement is likely to be viewed as a term




Case info: C relied on the advice given by the D to purchase a car

Guideline 5

Occasionally, a statement of opinion can amount to a term of the contract where the maker of the statement is deemed to have specialist knowledge

Esso Petroleum v Mardon [1976]

Rule of Law: Occasionally, a statement of opinion can amount to a term of the contract where the maker of the statement is deemed to have specialist knowledge




Case info: (P Appeal) P previous statement was an estimate of future sales rather than a statement of fact

Types of Contractual Terms

Express Terms or Implied Terms

Definition of Express Terms

Will either appear (a) in a written document (b) an oral contract

Parol Evidence Rule

Documents and evidence outside of the main contract do not form part of that contract

Definition of Implied Terms

On occasion, the law will imply into a contract certain terms which the parties have not expressly agreed to

Types of Implied Terms

- Terms implied by custom


- Terms implied by the courts (officious bystander test)


- Terms implied by statute

Terms implied by custom

Terms may be implied because they are customary in a particular trade of profession or locality

Smith v Wilson [1832]

Rule of Law: Terms implied by custom - Terms may be implied because they are customary in a particular trade of profession or locality




Case info: 1000 rabbits meant 1200 - not 1000

Terms implied by the courts (Officious bystander test)

- Terms may be implied by the courts to give 'business efficacy' to the contract


- Terms may be implied to fill in obvious gaps which the parties have not expressly provided for

The Moorcock [1889]

Rule of Law: Terms implied by the courts - Terms may be implied by the courts to give 'business efficacy' to the contract




Case info: D claimed his wharf on the river Thames was safe for C ship. It was not, as a result the C ship was damaged

Liverpool City Council v Irwin [1977]

Rule of Law: Terms implied by the courts - Terms may be implied to fill in obvious gaps which the parties have not expressly provided for




Case info: C was found to be liable for maintenance of a block of flats, even though it was not mentioned within the tenancy contract

Terms implied by statute

Sale of Goods Act [1979] - only applies to b2b/c2c


Consumer Rights Act [2015] - only applies to b2c


Supple of Goods and Services Act [1982]

Grant v Australian Knitting Mills [1936]

Rule of Law: Terms implied by statute




Case info: Landmark consumer law case in which C contracted dermatitis from underpants manufactured by D

Classification of Contractual Terms

The contents of a contract often contain detailed provisions relating to a variety of matters, but not all will be of equal importance. Any express/implied terms will be either :




Conditions, warranties and innominate terms - this is vital as the remedy for breach is different

Classification of Contractual Terms - Conditions

An important term the breach of which will entitle the injured party to end the contract and/or give him the right to sue for damages

Poussard v Spiers [1876]

Rule of Law: A breach of conditions will entitle the injured party to end the contract and/or give him the right to sue for damages




Case info: C breached a condition within the contract,and so D was entitled to end the contract

Classification of Contractual Terms - Warranties

This is a contractual term of a lesser importance, the breach of which gives the injured party a right to claim damages but not to end the contract

Bettini v Gye [1876]

Rule of Law: A breach in warranty gives the injured party a right to claim damages, but not to end the contract




Case info: C breached the warranty, even then the employer was not entitled to end the contract

Classification of Contractual Terms - Innominate Terms

Sometimes the court looks at the effect of the breach of the term before determining whether it is a breach of a condition or warranty

Hong Kong Fir Shipping v Kawasaki Kisen Kaisha [1962]

Rule of Law: Innominate terms, the court looked at the effect of the breach of the term before determining whether it is a breach of a condition or warranty




Case info: D was liable for wrongful repudiation as the ship they chartered to C was not seaworthy throughout the period of hire