Express Terms

Express Terms

1. Four Guidelines to distinguish terms and representations

   • Time lapse
     • The court will look at the length of time between the statement was made until the party entered the contract. The longer the duration, the more likely the statement is a representations.
     • Van Den Esschert v Chappel ( White Ants)
       • In Van Den Esschert v Chappel, the court held that the statement made by the def was a term because the parties entered into the contract immediately after the def assured the plf that the house was not infested by termites.
   • Importance of statement to party
     • If the innocent party place a greater importance upon a statement, the statement will be regarded as a term.
     • Bannerman v White (Sulphur in Hops)
       • In Bannerman v White, the court held that the statement made by the def was a term as the plf placed a great importance to the use of sulphur in the hops. The plf added that if there was a use of sulphur in the hops, the plf would not even bother to buy it.
   • Special skills and knowledge of the maker of statement
     • If the maker of the statement has special skills and knowledge compared to the other party, the court will classify the statement made as a term rather than representations.
     • Tan Chong & Sons Motor Company Sdn Bhd v Alan McKnight (Failure to comply Australian Design Regulations)
       • In Tan Chong & Sons Motor Company Sdn Bhd v Alan McKnight, the court held that the statement made by the appellants' salesman regarding the car to comply with the Australian Design Regulations was a term because they have the special skills and knowledge on cars compared to the respondent.
   • Statement reduced to writing
     • If the contract has been reduced to a document, and the statement in question is not included, it is more likely that the statement is a representation.
     • Routledge v Mckay (Model year of bike)
       • In Routledge v Mckay, the court held that the statement made by the def was a representations because the statement was not reduced to writing. It shows that the model of the motorcycle does not place a great importance to the contract.