Flashcards
Contract Law: Implied Terms
Flashcards do conjunto (14)
- 1What is important when assessing if something is a contractual terms or a ‘mere’ representations?1. The parole evidence rule
2. Relative expertise of the parties
3. Importance of the statement
4. Time
5. The intentions of the parties - 21. The parole evidence ruleWhere the contract has been put into writing only the terms included in the written document are terms any verbal statements will be representations.
- 32. Relative expertise of the partiesIf the representor has the greater knowledge, it is more likely to be a contractual term. Conversely if the representee has the greater knowledge it is more likely to be a representation:
Oscar Chess v Williams [1957] 1 WLR 370: Representee had more knowledge and therefore only representation.
Dick Bentley v Harold Smith Motors [1965]:
Representor had greater knowledge and therefore contractual term. - 43. The importance of the statement and relianceThe importance of the statement and reliance:
Where the representee indicates to the representor the importance of the statement, this is likely to be held to be a term:
Bannerman v White (1861) 10 CBNS 844:
The statement that the hops had not been treated with sulphur was a term of the contract rather than a representation as the claimant had communicated the importance of the term and relied on the statement. He wanted to use the hops for making beer and it was now not possible. His action for breach of contract was successful. - 54. TimingThe longer the time lapse between making the statement and entering the contract the more likely it will be a representation:
Routledge v Mckay [1954]:
The statement was a representation and not a contractual term. The registration document was not prima facie evidence of a contractual term. Neither party was an expert, and there was a lapse of time between the making of the statement and entering the contract giving the claimant the opportunity to check the statement. Furthermore there was no mention of the date in the written agreement and the words of the agreement stating the transaction is considered closed excluded any possible collateral warranty. - 65. The intentions of the partiesHeilbut, Symons & Co v Buckleton [1913]:
At first instance, the Court contended that Heilbut et al had made an innocent misrepresentation, however, upon appeal it was determined that no fraudulent misrepresentation had occurred as the defending party had not been ‘reckless’ as to the truth of the statement regarding their resources pool and further there was no clear intent that their remarks regarding their resources should amount to a binding contractual promise to act in parallel to their written agreement. - 7express and implied termsIt is possible to categorise the terms accordingly.
- 8Incorporating express terms(1) signature, notice, course of previous dealings
- 9Interpreting express terms(a) writing and words: the parole evidence rule and the Law Commission: parole means that only what is in the final contract is admissable.
(b) collateral contracts (there is a contract aside the main contract)
(c) unusual or onerous terms: The term was not incorporated into the contract. Where a term is particularly onerous the person seeking to rely on the term must take greater measures to bring it to the attention of the other party
d) the new contextualism v. old fashioned literalism - 10Implied Terms(a) terms implied by the courts
(b) Terms implied by statute: a couple of examples - CRA 2015 s. 9 10 and 11; Late Payment of Commercial Debts Act 1998 - 11methods of implication (1)(i) implied by custom/convention:
Hutton v Warren (1836)
Terms may be implied due to custom or usage of a certain trade.
(ii) implied by fact (1): business efficacy:
The Moorcock [1886]
Terms will be implied in fact in order to ensure business efficacy and sustain the agreement as a business-like arrangement.
(iii) implied by fact (2): the officious bystander
Shirlaw v Southern Foundries [1939]
Terms may be implied in fact under the 'officious bystander' test: it is a term so obvious that both parties must have in the circumstances intended it to be a part of the contract.
Shell UK v Lostock Garage [1977]
There are circumstances where the 'officious bystander' test cannot be applied, namely where it is uncertain that both parties would have agreed to the term even if it had been included in the agreement. - 12methods of implication (2)(v) implied by law
Liverpool CC v Irwin [1977]
Terms may be implied by law due to a 'necessary incident' of the particular type of contract. However, the implied term may be a qualified contractual obligation (reasonable care and skill) rather than a strict obligation.
Scally v Southern Health and Social Services Board [1992]
Terms may be implied in law i.e. there are legal obligations which may be inserted into a contract as a matter of policy or as a 'necessary incident' of the type of contract, irrespective of the parties' intentions.
(vi) Terms implied by statute:
CRA 2015 s. 9 10 and 11; Late Payment of Commercial Debts Act 1998 - 13the relationship between the two implied by factAttorney-General of Belize v Belize [2009]
The test is now one of objective construction: when implying a term, the question is whether such a provision would expressly state what the instrument, read against the relevant background, would reasonably be understood to mean.
Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited [2015] UKSC 72
“[Lord Hoffman’s] observations [in Belize] should henceforth be treated as a characteristically inspired discussion rather than authoritative guidance on the law of implied terms” (Lord Neuberger, at para 15; italics mine). Ouch. - 14Relationship implied terms vs expressed termsJohnstone v Bloomsbury HA [1992]
There are situations where implied terms may prevail over express terms (e.g. employment contracts, where employers must not endanger the health of employees by imposing rigorous working hours).
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- Law (Contract Law) FlashCards sobre Contract Law: Implied Terms, criado por thierry fasnacht em 19-01-2018.
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- Criado por um usuário excluído · 8 mai 2013
- Copiado por thierry fasnacht · 19 jan 2018
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