Quiz
Module 4 + 5
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Questions in this quiz (15)
1The [blank_start]express[blank_end] terms of the contract are those promises, warranties, obligations, rights, duties, remedies and other terms that are stated by the parties either in writing and/or in a verbal agreement.
- Aexpress
2The rule in L’Estrange v F Graucob or the [blank_start]signature rule[blank_end] as it has become known, means that persons who sign contracts are bound by their terms unless they can establish some ground for vitiating their genuine consent in signing the contract, such as misrepresentation.
- Asignature rule
3To sum up, the signature rule will not apply in certain cases:
- Where the signature appears on a document that is not [blank_start]contractual[blank_end] in nature
- Where the signature occurs [blank_start]after[blank_end] the contract has already been formed, and
- Where [blank_start]vitiating[blank_end] factors apply.- Acontractual
- Bafter
- Cvitiating
4The most common way for persons receiving tickets and other non-contractual documents to appreciate that they are agreeing to a set of contractual terms is to give the person [blank_start]notice[blank_end] of those terms.
- Anotice
5The law of contract recognises that they have agreed to the terms once they have received sufficient notice, one critical element is [blank_start]timing[blank_end]. The notice must be brought to the customers’ attention [blank_start]before[blank_end] they enter into the transaction: Robertson v Balmain New Ferry Co Ltd.
- Atiming
- Bbefore
6The implication of terms into a contract by [blank_start]fact[blank_end] involves the court determining that the parties intended to include one or more terms into the contract but failed to do so and the contract would not be effective unless the term was implied by the court.
- Afact
7The BP Test
The law will only recognise the implication of terms by fact where there is some compelling reason to do so. The leading decision on the implication of terms by fact is the decision in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, where the court held that:
For a term to be implied, the following conditions (which may overlap) must be satisfied:
1. it must be [blank_start]reasonable[blank_end] and equitable
2. it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it
3. it must be so obvious that “[blank_start]it goes without saying[blank_end]”
4. it must be capable of clear expression, and
5. it must not [blank_start]contradict[blank_end] any express term of the contract- Areasonable
- Bit goes without saying
- Ccontradict
8Terms that are implied by [blank_start]law[blank_end] have arisen because of repeated prior implications of those terms in contracts of a particular type or class. The focus is on whether the term to be implied is necessary for the contract to achieve its purpose. Each case will turn on its own facts by reference to the particular industry.
- Alaw
9A distinction may be drawn within a contract between [blank_start]substantive[blank_end] provisions that impose rights and obligations on the parties and [blank_start]ancillary[blank_end] or [blank_start]machinery[blank_end] provisions that support the exercise of those rights and obligations. [blank_start]Machinery[blank_end] provisions are commonly called “boilerplate clauses”.
- Asubstantive
- Bancillary
- Cmachinery
- DMachinery
10Condition [blank_start]precedent[blank_end]: the occurrence of an event that must occur before the contract or the performance of a particular obligation under it becomes legally binding. Eg could be that a certain approval or a licence be obtained before the contract will take effect.
Condition [blank_start]subsequent[blank_end]: an event that will allow the contract to be terminated or an obligation not be performed if it occurs. Eg “subject to finance” clause.- Aprecedent
- Bsubsequent
11Clauses in a contract can be roughly divided into:
- [blank_start]Boilerplate[blank_end] clauses (Also called ancillary or machinery provisions): the standard clauses contained in a contract – the ‘engine’ of the contract.
Examples are: Recitals, Definitions, Interpretation, Notices, Entire agreement, Amendment, Assignment, Non waiver, Costs and Stamp Duty, Governing law and Jurisdiction, Force Majeure
- [blank_start]Common[blank_end] clauses (other [blank_start]optional[blank_end] clauses ) of a standard nature applicable in certain circumstances
Examples are: Dispute Resolution, Liquidated Damages, Limitation of Liability, Severability of Provisions, Termination, Time is of the Essence- ABoilerplate
- BCommon
- Coptional
12A [blank_start]force majeure[blank_end] event refers to an act that is beyond the control of the parties and prevents or severely inhibits their ability to perform one or more obligations under the contract.
- Aforce majeure
13An [blank_start]exclusion clause[blank_end] is one that seeks to protect one or more of the parties to a contract from particular forms of liability while a [blank_start]limitation clause[blank_end] seeks to limit the forms of liability for one or both of the parties.
- Aexclusion clause
- Blimitation clause
14The [blank_start]parol evidence rule[blank_end] is a rule of contract law that limits what evidence may be used by the court to interpret the meaning of the words used in a document that makes up the whole or part of a contract.
- Aparol evidence rule
15Exceptions to the PER:
The parties can give evidence to add to the written contract of:
1. [blank_start]Partly written[blank_end], [blank_start]partly oral[blank_end] contracts
- The parties intended or agreed to have a partly written, partly oral contract
- Verbal or other evidence does not [blank_start]contradict[blank_end] the written contract - oral item needs to be [blank_start]consistent[blank_end] with the written terms in the contract
- Even if it can be established that the parties did not intend the document to record all the terms of their contract, evidence is admissible only of oral terms that ‘[blank_start]add to[blank_end]’ rather than ‘[blank_start]vary[blank_end]’, the document.
2. Terms implied by [blank_start]law[blank_end], a trade [blank_start]usage[blank_end], rectification, invalidity, ambiguity or uncertainty- APartly written
- Bpartly oral
- Ccontradict
- Dconsistent
- Eadd to
- Fvary
- Glaw
- Husage
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- 2 Applied Contract Law Quiz on Module 4 + 5 , created by Laura C on 20/06/2016.
- Author
- Laura C
- Language
- English
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