Flashcards
The Test for Term or Representation
Cards in this deck (8)
- 1What are the three options of what a statement could be?Mere Puff (statement or opinion)
Representation
Term - 2Why is it important to know the difference between a representation and a term?Depending on whether it is a representation or a term, the remedies available to the cliament will differ depending on what it is.
e.g. ... - 3What are the tests which are used to distinguish whether it is a representation or a term of the contract?Time interval between making the statement and making of the contract.
Reduction of a contract into writing.
The importance of the statement.
Relative bargaining powers of the parties with regard to special knowledge and skill.
The strength of statement. - 4What is the rule and case for: Time interval between making the statement and making the contract?If there is a lot of time between the statement and the making of the contract, then it is likely to be a representation.
Routledge v McKay [1954]: Motorbike advertised to be 1942 model, but actually 1936 model, however, the purchaser went away before buying.
Held: there was a lapse of time between the statement and the contract, the claimant had the opportunity to check the statement. - 5What is the rule and case for: Reduction of a contract into writing?If there is a written agreement and does not suggest anywhere the statement, then this suggests that it was a representation.
Routledge v McKay [1954]: Motorbike advertised to be 1942 model, but actually 1936 model, the written agreement did not include anywhere about the age of the bike. - 6What is the rule and case for: The importance of statement?If one party attaches special importance to the statement, which the other party was aware of, then it is strongly suggested it is a term.
Bannerman v White [1861]: Claimant wanted to buy hops without being treated with sulphur, saying he wouldn't buy them if they had, and seller ensured him they were not. However, they had been.
Held: This was a term of the contract, as he had communicated the importance of there being no sulphur. - 7What is the rule and case for: Relative bargaining powers of the parties with regard to special knowledge and skill?If someone who is deemed to be an expert in the area of the contract, and makes a statement to someone who is not a statement, then it is likely it is a term.
Dick Bentley Productions v Harold Smith Motors [1965]: The claimant brought a car from an expert, he claimed the car had done 20,000 miles, whereas it had done 100,000 miles.
Held: it was a term, as the claimant relied on the expertise of the defendant.
Oscar Chess Ltd v Williams [1957]: car brought by a car dealer, owner stating it was a 1948 model, without knowing it was actually a 1939 model.
Held: this was only a representation as it was a non-expert giving a statement to an expert. - 8What is the rule and case for: The strength of statement?The stronger the statement, the more likely it is to be a term.
Schawel v Read [1913]: Defendant stated "there was nothing wrong with the horse, and he would tell him if there was". It turned out there was a hereditary eye disease the horse had, so couldn't be used for breeding.
Held: this was a contractual term as the defendant ensured him he could rely on his word.
Ecay v Godfrey [1947] stated he was not aware of any problems with the boat, but advised him to have it surveyed. The boat turned out to be faulty.
Held: This was a mere representation, he did not emphasise the boat was fine and advised him to have it surveyed.
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- Degree Contract Law (Terms and Representation) Flashcards on The Test for Term or Representation, created by James Dolton on 05/04/2017.
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- James Dolton
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