Express terms

Flashcards by alan.10a, updated more than 1 year ago
Created by alan.10a over 6 years ago


The first part of Express and implied terms

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Question Answer
What are express terms? These are terms which the parties have agreed to between themselves.
What are implied terms? Terms which are inserted into a contract automatically through legislation or by courts e.g. the Sale of goods Act 1979
Terms of a contract can be classified in order to see the status of the term, what are the statuses? 1. Condition 2. Warranty 3. Innominate term It's important to know the status of a term as they affect the remedies available to breach of terms as each status has a different remedy
What are the fundamental elements of an express term? 1. The content 2. Its construction 3. The incorporation of the express term
What is the advantage of using boiler plate clauses? Drafting a contract from scratch is time consuming and therefore standard contracts aka boiler plate clauses are more useful as they are less time consuming
What is a statement? Express terms are agreed by parties however, this does not mean that what ever is said will become part of the contract. Statements made in negotiation by the parties may be classified as representations rather than terms of a contract.
1.How do you distinguish whether a statement is a term of a contract, or just a mere representation? In determining this, a court will look at a number of factors, none of which is conclusive but each of which is of relevance: 1. The importance of the statement: Bannerman v White- If a statement is so important to the offeree that the offeree relies upon it, then the statement is a term especially if the D is made aware that the only reason the innocent party is agreeing to the contract is due to the statement. 2.
2. How do you distinguish whether a statement is a term of a contract, or just a mere representation? 2. A statement will not be a term if the person making the statement asked the other party to check or verify it as seen in Ecay v Godfrey
What is the parole evidence rule? Generally where the parties have put the contract in writing that will be presumed to reflect the intention of the parties and the courts will not consider anything outside of these, the parole evidence rule. This rule is not absolute and an oral statement may be read alongside the written agreement as a term where that statement is of significant importance to the claimant as seen in Couchman v Hill
Other than the exception seen in Couchman v Hill (Rectification) what other exceptions are there to the parole evidence rule? When a term is ambiguous, the agreement is incomplete, or a particular trade is in operation which indicates the way in which a term will be interpreted
3. How do you distinguish whether a statement is a term of a contract, or just a mere representation? 3. The Reliance of the Claimant on the Other Party’s Skill and Knowledge: Having greater knowledge than the seller makes the statement not a contractual term as seen in Oscar Chess v Williams
How can incorporation be made? (3 ways) - Through Signature: if done by signature, then it will be assumed that as you signed the contract that you want to be bound by the contract as seen in L’Estrange v Graucob Incorporation can also be done by notice: Must be at or before the time the contract is made as seen in Olley v Marlborough Court . Additionally, reasonable steps must be taken to bring the contract terms to the notice of the other party otherwise it will not be incorporated as seen in Parker v South East Railway Company. -A term can also be implied into a contract to make the contract work as seen in Moorcock
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