Term
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Definition
| They define the rights and liabilities of the parties |
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Term
| How are terms inserted into a contract? |
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Definition
| In various ways... written, oral, implied by statute, implied by the courts, implied by previous conduct |
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Term
| What may look like a term, but is not a term? |
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Definition
| Mere puff & a mere representation |
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Term
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Definition
SOMETHING WHICH NO REASONABLE MAN WOULD BELIEVE
e.g. advertising puffery... e.g. Pepsico (see agreement)
'Guiness, the best beer in the
world'
'Gilette, the best a man can get' |
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Term
| Does untruthful mere puff have any legal effect? |
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Definition
| NO - party cannot bring an action if mere puff is untrue |
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Term
| What is the difference between a term of a contract (which is a statement of fact) and a mere representation? |
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Definition
A term of a contract is something which a contracting party absolutely relies on the truth of... it is a contractual promise
A mere representation is something which a party DOESN'T absolutely rely upon the truth of (however, a mere representation can still be something which induces you to enter the contract) |
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Term
| What is a mere representation |
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Definition
| A statement of fact, which has been deemed to be a mere representation, because it is a statement which a contracting party DOES NOT absolutely rely on the truth of |
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Term
| If a statement of fact is a factor which induces a party to form a contract, will it automatically become a term? |
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Definition
| NO - it may be held to be a mere representation, it depends on whether it is something which the pary absolutely relies on the truth of. |
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Term
| Why is it important to distinguish mere representations from terms of a contract? |
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Definition
Distinction is in the rememdies.
An untrue mere representation = action in misrepresentation = not as good a claim as breach of contract |
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Term
| What is a term (in its most basic form)? |
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Definition
| A term is a contractual promise. |
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Term
| What are the two ways in which terms get in to a contract? |
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Definition
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Term
| What are the two ways in which express terms can get in to a contract? |
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Definition
1) Pre-contractual statements made during negotiations (parties may not know that the pre-contractual statement has become a term of the contract)
2) Agreed terms written in to the contract |
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Term
| Will all pre-contractual statements made during negotiations become a term of the contract? |
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Definition
| NO, not necessarily. Furthermore, parties may not know that pre-contractual terms have become a term of the contract (will need to go to the courts for this) |
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Term
| What distinguishes express terms from implied terms? |
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Definition
Express terms are terms which all contracting parties are aware of.
Implied terms are terms which neither party is necessarily aware of... have not necessarily been discussed by the parties. (IMPLIED BY LAW, IMPLIED BY FACT) |
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Term
| What determines whether a pre-contractual statement made during negotiations becomes a term of the contract? |
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Definition
Ewan McKendrick (Contract law academic)
The courts will discern the intention of the parties from the objective of a reasonable man, whilst having regard to a variety of factors. |
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Term
| Ewan McKendrick on pre-contractual statements |
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Definition
| In determining whether a pre-contractual statement is held to = term of a contract, the courts will try to discern the intention of the parties from the perspective of a reasonable man, whilst having regard of a variety of factors. |
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Term
| TEST... two drunk chaps in a pub form a contract. Man A said something which man B thinks is a term of their contract. However, man A didn't think it would become a term of the contract. How will the courts determine whether man A's statement should be a term of the contract? |
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Definition
The court will try to discern the intentions of the parties. However, in doing so, they will disregard what the parties say, and will instead look upon it from the perspective of the reasonable man - what the reasonable man would have though the parties' intentions were, whilst having regard to a variety of factors. (i) The importance of the statement
ii) The timing of the statement
iii) Whether or not the statement has been reduced in to writing
iv) Specialist knowledge
v) Any assumptions of responsibility) |
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Term
| In Ewan McKendrik's explanation on how courts will determine whether pre-contractual statements are terms or not, he referred to a 'variety of factors' which the courts will bear in mind. What are these factors? |
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Definition
i) The importance of the statement
ii) The timing of the statement
iii) Whether or not the statement has been reduced in to writing
iv) Specialist knowledge
v) Any assumptions of responsibility |
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Term
| In deciding whether a pre-contractual statement is a term, when considering the importance of the statement, which case can be used to illustrate this? |
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Definition
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Term
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Definition
A PRE-CONTRACTUAL STATEMENT WHICH IS A DEAL BREAKER (SEVERELY IMPORTANT) = A TERM
D wants to buy hops from C
C said to D 'I'm only interested in buying hops from you if they haven't been treated with sulpher. Don't bother giving me the price if they have been treated with sulphur'.
C told D that the hops hadn't been treated with sulphur
However, this was not written in to the contract
It turned out that the hops had been treated with sulphur.
D refused to complete the contract
C sued him
HELD - no sulphur = a term of the contract, on the basis that it was a deal breaker. Therefore, the contract was rejected. |
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Term
| In order to assess the importance of pre-contractual statements, what must one consider? |
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Definition
| How important was the statement to the parties? |
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Term
| In deciding whether a pre-contractual statement is a term, when considering the timing of the statement, which case can be used to illustrate this? |
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Definition
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Term
| What is the effect of the timing of pre-contractual statements w.r.t whether or not they are held to be terms of the contract? |
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Definition
If you make a statement minutely before / at the time of making the contract, it is likely to be held to be a term of the contract.
The more time that lapses between the statement and the contract = depreciation in the likelihood that it will = a term (+ bearing in mind the other factors) |
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Term
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Definition
IF A REASONABLE TIME IS LEFT BETWEEN A PRE-CONTRACTUAL STATEMENT AND FORMATION OF THE CONTRACT, UNLIKELY TO FIND THAT STATEMENT = A TERM OF THE CONTRACT (as contracting party has time to conduct research on the statement)
IF A PRE-CONTRACTUAL STATEMENT IS NOT WRITTEN IN TO THE TERMS OF A CONTRACT = LOW IMPORTANCE TO THE STATEMENT = UNLIKELY TO BE FOUND TO BE A TERM
C went to look at a motorbike the D was selling
When inspecting the bike, D told the C that bike = 1942 model
C goes away
C later buys the bike
C discovers that the bike is a 1932 model
Written contract did not mention the age of the bike
HELD - Age of the bike was not a term of the contract. Because, there was a reasonable time between the statement and the contract. In that time, the C could have made further inquiries in that time etc.
Also, because the age was not written into the contract, it was deemed not to be that important. |
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Term
| In deciding whether a pre-contractual statement is a term, when considering whether the statement has been reduced in to writing, which case can be used to illustrate this? |
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Definition
Inntrepreneur Pub Co v East Crown Ltd [2000]
Routledge v McKay [1954] |
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Term
| Inntrepreneur Pub Co v East Crown Ltd [2000] |
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Definition
WHERE THE TERMS OF THE CONTRACT ARE METICULOUSLY WRITTEN DOWN, PRE-CONTRACTUAL STATEMENTS WHICH ARE NOT WRITTEN DOWN, ARE UNLIKELY TO BE FOUND TO BE TERMS
D were leasing a pub from C
D's had covenant which said they had to solely buy their beer from the C
D claimed there had been an oral agreement that the C would release them from the beer tie/covenant
C's disputed this, and so sued the D
HELD - not a term of the contract. All the terms of the contract had been meticulously written down (it was an exceptionally well drafted contract), and yet there had been no mention of an agreement to release the D from the beer tie. |
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Term
| In deciding whether a pre-contractual statement is a term, when considering 'specialist knowledge', which case can be used to illustrate this? |
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Definition
Oscar Chess v Williams [1957]
Bentley v Harold Smith (Motors) [1965] |
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Term
| In deciding whether a pre-contractual statement is a term, when considering specialist knowledge, what is the general 'rule of thumb'? |
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Definition
| Whoever is the expert will lose (e.g. whoever has more expertise will lose, as they have the necessary lnowledge to ensure that the contract they enter in to is 'right' for them) |
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Term
| Oscar Chess v Williams [1957] |
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Definition
A PARTY WHO IS AN EXPERT / HAS SPECIALIST KNOWLEDGE IN THE RELEVANT FIELD IS LIKELY TO BE THE LOSING PARTY, AS THEY HAVE THE NECESSARY EXPERTISE TO ENSURE THAT THE CONTRACT THEY ARE ENTERING IN TO IS 'RIGHT' FOR THEM
C = car dealer (expert)
D = person who sells car to C (layman)
D tells C that the car is a 1948 model
D believed it was a 1948 model because the car's log book had been 'fiddled' by the previous owner
C buys the car
C then looks at the chassy number, and discover that the car is a 1939 model
C sues D
HELD - C had specialist knowledge, was in the best position to check it, and had the requisite expertise... therefore, couldn't simply rely on a pre-contractual statement.
Therefore = not a term of the contract |
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Term
| Bentley v Harold Smith (Motors) [1965] |
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Definition
IF A PARTY HAS SPECIALIST KNOWLEDGE, THEY ARE UNLIKELY TO WIN, AS THEY ARE BEST PLACED TO ENSURE THAT THE TERMS OF THE CONTRACT REFLECT WHAT THEY WANT
C = layman who wanted to buy a Bentley
D sold him a Bentley
D told C that the mielage was 20,000 less than what it a
ctually was
HELD - D was the expert, therefore he was better placed than the C... therefore, D's pre-contractual statement was a term.
Therefore, C won. |
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Term
| In deciding whether a pre-contractual statement is a term, when considering 'assumption of responsibility', which case can be used to illustrate this? |
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Definition
Schawel v Reade [1913]
Hopkins v Tanqueray |
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Term
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Definition
IF ONE PARTY TELLS THE OTHER PARTY NOT TO BOTHER CHECKING SOMETHING, THAT PARTY ASSUMES RESPONSIBILITY FOR THE CONDITION OF WHATEVER WASN'T CHECKED, AND THE STATEMENT BECOMES A CONTRACTUAL PROMISE / TERM OF THE CONTRACT
C was buying a horse from D for stud purposes
C went to check the horse
D said to C 'I assure you, the horse is perfectly sound, there is no need to check'
Therefore, C didn't check
C bought the horse
Horse turned out to be ill
HELD - D had assumed responsibility for the health of the horse, D's statement became a contractual promise |
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Term
| Hopkins v Tanqueray [1854] |
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Definition
EXCEPTION TO THE RULE THAT A PRE-CONTRACTUAL STATEMENT WHICH DETERS CHECKING AND MAKES A CLAIM TO THE CONDITION OF AN ITEM = AN ASSUMPTION OF RESPONSIBILITY AND A TERM
a) IN CIRCUMSTANCES WHERE THERE IS AN OVERRIDING 'THING' WHICH INDICATES THAT THE ITEM IS NOT IN THE CONDITION SUGGESTED BY THE PRE-CONTRACTUAL STATEMENT
b) WHERE THERE IS REASONABLE TIME FOR THE PURCHASER TO CHECK THE CONDITION
C was buying a horse from D at an auction
D told the C not to worry about checking the health of the horse as it was in good health
C didn't check the horse
C came back next day and purchased the horse
The horse turned out to be ill
HELD - D's precontractual statement was not a term of the contract because:
i) the C had had an entire day to go back and check the health of the horse
ii) if you are buying something at auction, it is standard procedure for the catalogue to say whether or not something is warranted. In this case, the horse wasn't warranted in the catalogue, therefore, buyer should have checked |
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Term
| In determining whether a pre-contractual statement is a term, the courts will consider any 'assumptions of responsibility'. What does this mean? |
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Definition
| It concerns checking & verification. If a pre-contractual statement deters the other party from checking the condition of an item & assures the other party that the item is in a particular condition - the person who made the statement becomes responsible for the condition they promised (assumption of responsibility), and the promised condition becomes a term of the contract (EXCEPTION = HOPKINS V TANQUERAY) |
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Term
| Which recent case brought the 'parol evidence rule' back to life? |
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Definition
| Inntrepreneur Pub Co v East Crown Ltd [2000] (because there was a thorough written contract, extrinsic evidence wasn't allowed to be considered) |
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Term
| What is the parol evidence rule? |
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Definition
EXTRINSIC EVIDENCE CANNOT BE ADDUCED TO VARY AN EXPRESS WRITTEN CONTRACT
If you have a written contract, nothing outside of the written contract can be used to vary it (e.g. pre-contractual statements which were not included in the terms of the contract) |
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Term
| Which case does the Parol Evidence rule come from? |
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Definition
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Term
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Definition
INTRODUCED THE PAROL EVIDENCE RULE
If you have a written contract, nothing outside of the written contract can be used to vary it |
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Term
| Discuss the history of the Parole Evidence rule? |
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Definition
| The courts don't like it, and they came up with many ways of getting around it. They were able to get around it with such ease that the law commission said it was a bit of a non-entity now. However, the case of Intrepreneur Pub Co v East Crown Ltd [2000] appears to have revived it. |
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Term
| What are the different exceptions to the parole evidence rule? |
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Definition
i) not wholly written contracts
ii) collateral contracts
iii) where terms are onerous |
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Term
| How do 'not wholly written contracts' get around the parole evidence rule? |
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Definition
Because they are seen as not being fully in writing, therefore, non-written terms are also included.
A BIT OF A FARCE |
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Term
| What case can be used to show that not wholly written contracts get around the parole evidence rule? |
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Definition
| J Evans & Sons v Andrea Merzario [1976] |
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Term
| J Evans & Sons v Andrea Merzario [1976] |
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Definition
HYBRID CONTRACTS ARE NOT SUBJECT TO THE PAROLE EVIDENCE RULE
A HYBRID CONTRACT IS ONE WHICH IS PARTLY WRITTEN AND PARTLY ORAL
HELD TO BE A HYBRID CONTRACT BECAUSE...
IN THIS CASE, PREVIOUS CONDUCT HELD TO BE TERMS OF THE CONTRACT, FURTHERMORE, THE C'S WERE INDUCED INTO THE CONTRACT BY THE ORAL STATEMENT... THEREFORE ORAL STATEMENT = A TERM & CONTRACT & CONDUCT = TERMS OF THE CONTRACT = A HYBRID CONTRACT & NOT SUBJECT TO PAROLE EVIDENCE RULE
C manufactured big machinery
C has a rolling agreement with the D for the D to transport the C's machinery to Milan
D always put the machinery in the hold of the ship to protect it from salt water
One day, D informs the C that he is going to change the way he transports equipment, he is going to put it all in large containers
C said he would still contract with them, as long as the D put the container with his machinery in it in the hold of the ship
D transports the C's machinery, but D puts the container on the deck of the ship
A sea swell knocks C's machinery in to the sea
C sues D
D argued that because the agreement that the container would be in the hold was not in the written contract, he couldn't be sued (Parole Evidence Rule)
HELD - Parole evidence rule didn't apply, contract was held to be a hybrid cotnract, as it was partly written and partly oral. Because C was induced in to contract by D's statement, D's statement became a term of the contract, thus making it a hybrid contract. |
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Term
| How do 'collateral contracts' get around the parole evidence rule? |
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Definition
| The terms of a collateral contract wouldn't be contained in the terms of the main contract, however can alter / override the terms of the main contract. Thus, where the court finds a collateral contract, the parole evidence rule can be avoided. |
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Term
| Which case can be used to show that collateral contracts get around the parole evidence rule? |
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Definition
| City of Westminster v Mudd [1959] |
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Term
| City of Westminster v Mudd [1959] |
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Definition
COLLATERAL CONTRACTS GET AROUND THE PAROLE EVIDENCE RULE
D = shopkeeper who leases a shop from the C
D also sleeps and lives in the shop
C then informed the D that the new lease will be non-residential
D refused to sign
C told D not to worry about it, and that they wouldn't enforce the non-residential clause
D signed the contract
Cs issued D with a notice to evict because he was living in the shop
HELD - the Cs promise that D could continue to live in the shop & D then signing the lease = consideration & therefore = a collateral contract. |
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Term
| Which case can be used to show that where terms in a contract are onerous, they will be ignored, and thus the parole evidence rule will be avoided? |
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Definition
| Interfoto v Stiletto [1989] |
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Term
| Interfoto v Stiletto [1989] |
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Definition
ONEROUS TERMS HAVE TO POINTED OUT BY A BIG RED HAND, OTHERWISE COURT WILL NOT ENFORCE THEM AND PAROLE EVIDENCE RULE WILL BE AVOIDED.
Ds hired some transparencies from C
C sends the D 47 transparancies, with a delivery note which says (in tiny fine print) 'if you are late returning these transparencies, you will be charged £5 per day per transparency for every day you are late'
Ds forget about the transparencies. Over a month after the return date, the D remembers about them
D sends the transparencies back
C sends D a late fee bill for £4000
D refuses to pay
HELD - the term could not be enforced, something as onerous as it would have to be pointed out by a 'big red hand'. An contract which contains an onerous clause which isn't pointed out by a big red hand, the contract will be exempt from the parole evidence rule |
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Term
| What is the 'big red hand' rule? |
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Definition
| DENNING - Rule that where terms in a contract is onerous, they have to be pointed out by a 'big red hand', otherwise, the court will not uphold the term, and the parole evidence rule will be avoided... (in that something extrinsic to the contract (common sense & fairness) will be used to alter the terms of the contract) |
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Term
| In what way does the 'big red hand' rule get around the parole evidence rule? |
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Definition
| Where terms in a contract are onerous, they have to be pointed out by a 'big red hand', otherwise, the court will not uphold the term, and the parole evidence rule will be avoided... (in that something extrinsic to the contract (common sense & fairness) will be used to alter the terms of the contract) |
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Term
| What are the different types of 'representations'? |
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Definition
A mere representation
And a representation which becomes a term of the contract
Both types are actionable in different ways |
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Term
| What is an entire agreement clause? |
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Definition
A clause which ousts the exceptions to the parole evidence rule & instead makes the parole evidence rule applicable.
E.G. a clause which states that nothing extrinsic to the contract can go in to the contract.
IN PRACTICE, YOU HAVE TO PUT THESE CLAUSES IN TO EVERY CONTRACT. |
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Term
| What is a boiler plate clause? |
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Definition
| A type of clause that goes in to every type of contract within a particular industry. Entire agreement clauses are boiler plate clauses (however, entire agreement clauses go in to contracts in every industry = standard commercial contract term). |
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Term
| What are the three ways in which implied terms get in to a contract? |
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Definition
a) Implied by the courts at common law in law
b) Implied by the courts at common law in fact
c) Implied by statute |
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Term
| What does 'implied in law' mean & do? |
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Definition
| A TERM IMPLIED IN LAW INTO ALL CONTRACTS OF A PARTICULAR TYPE TO MAKE THEM CONFORM LEGALLY. Therefore, inplied in law is NECESSARY to make contracts perform legally. |
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Term
| What does 'implied in fact' mean & do? |
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Definition
| Implied by the intention of the parties - but from the perspective of the reasonable mans in the context in which the contract was made. (e.g. implied by the facts of the case) |
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Term
| What does 'implied by statute' mean & do? |
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Definition
| Different statutes which imply terms into contracts... e.g. Sale of Goods Act 1979 & UCTA ... etc.. |
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Term
| Liverpool City Council v Irwin [1976] |
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Definition
A LEASE NEEDS TO OUTLINE TO OBLIGATIONS OF THE TENANT AND THE LANDLORD - THIS LEASE FAILED TO DO SO, THEREFORE COURTS IMPLIED THE NECESSARY TERM TO MAKE THE CONTRACT/LEASE PERFORM IT'S LEGAL FUNCTION
D leased flat from C
Lease didn't specify who was responsible for maintaining the common parts of the building
Court therefore implied a term to saw who was responsible... Cs held to be responsible for maintaining the common areas. |
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Term
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Definition
COURT RULED THAT AN IMPLIED TERM OF EMPLOYMENT CONTRACTS WAS THAT THE EMPLOYER WOULD NOT CONDUCT ITSELF IN A WAY THAT WOULD PREJUDICE IT'S EMPLOYEES
THE WORLD'S SLEAZIEST BANK CASE
C was employed by D (a bank)
Within the bank, loads of fraud and sleazy things were going on
D went bankrupt because of corruption within
C tried to get a job elsewhere, but he was tained because he had worked for the D
Cs contract said nothing about how the D should have conducted itself
HELD - courts implied a terms that a company will no conduct itself in such a way as would prejudice the future rights of employees. |
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Term
| In determining 'terms implied in fact', the courts will consider 4 things. What are they? |
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Definition
a) CONDUCT OF THE PARTIES
b) TRADE CUSTOMS (e.g. customs & norms within a particular trade / industry)
c) COURSE OF DEALING (e.g. regular and consistent contracting on certain terms)
d) THE NEED TO GIVE BUSINESS EFFICACY (something which is needed for the contract to make commercial/common sense) |
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Term
| Which case can be used to show terms implied in fact on the basis of trade customs? |
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Definition
| British Crane Hire v Ipswich Plant [1975] |
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Term
| British Crane Hire v Ipswich Plant [1975] |
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Definition
WHERE THERE IS A COMMONLY KNOWN TRADE CUSTOM, THIS WILL BE IMPLIED INTO A CONTRACT
C hires out cranes
D phone C one day and says we urgently need a crane
C & D make an oral agreement of hire over the phone
C urgently sends out the crane
C then begins to fax over the T&Cs
Before C has sent over the T&Cs, the crane has already arrived on the D's property & the crane begins to sink in to the marsh land
Cs sue D for the cost of recovering the crane from the swamp & repairing it
D refuses to pay because there was no signed contract
HELD - an indemnity clause is standard when hiring stuff (indemnity clause = hirer will pay for any damage caused to the thing that is hired) - therefore, the Ds knew that the indemnity clause would exist, therefore court implied the clause/term in in fact (by trade customs) |
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Term
| Which cases can be used to discuss terms implied in fact on the basis of 'course of dealing'? |
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Definition
McCutcheon v MacBrayne [1964]
Hollier v Ramblers Motors [1972]
Photolibrary Group Ltd v Burda Senator Verlag [2008] |
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Term
| Photolibrary Group Ltd v Burda Senator Verlag [2008] |
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Definition
| COURT HELD THAT THERE WAS A CONSISTENT AND REGULAR COURSE OF DEALINGS BETWEEN THE PARTIES - THEREFORE IMPLIED TERM |
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Term
| Hollier v Ramblers Motors [1972] |
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Definition
IN ORDER FOR A COURSE OF DEALING TO BE A COURSE OF DEALING, IT HAS TO BE REGULAR
3 - 4 TRANSACTIONS OVER 5 YEARS IS NOT REGULAR (WHERE IT IS FOR A SERVICE WHICH IS REQUIRED MORE REGULARLY)
'I do not know of any other case in which it has been decided or even argued that a term could be implied into an oral contract on the strength of a course of dealing which consisted at most of three or four transactions over a period of five years'DF |
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Term
| McCutcheon v MacBrayne [1964] |
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Definition
SOMETHING WHICH SOMETIMES HAPPENS & SOMETIMES DOESN'T, IS NOT A COURSE OF DEALING - BECAUSE IT ISN'T CONSISTENT
C regularly shipped their cars to the mainland using D's ferry
D sometimes got the C to sign a risk note, and sometimes he wouldn't
on this particular incident, D forgot to get the C to sign the risk note
Risk note said that if anything happened to the cars, the D wouldn't be liable
One of the cars fell of the ferry
C sues D for the price of the car
D argued that the risk note should be a term of the contract
HELD - signing the risk note was not consistent enough - has to happen every time for it to be consistent |
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Term
| What must a 'course of dealing' be, inorder for it to produce a term which can be implied by fact? |
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Definition
| It must be regular and consistent (exactly the same each time) |
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Term
| Lord Hoffman on 'terms implied in fact' |
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Definition
| All done from the perspective of the reasonable man having regard to the context and all background information. |
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Term
| Shirlaw v Southern Foundries [1939] |
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Definition
C was appointed by the D to become their MD for a period of 10 yrs
D then changed their articles of association so that the the C was removed from his position
C aregued that it was an implied term of his contract that the D would not remove him as director before the 10 years of his appointment were up
HELD - Business efficacy = the term is implied that the C would not be removed |
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Term
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Definition
TERM IMPLIED IN FACT WHERE THE TERM IS NEEDED FOR BUSINESS EFFICACY - COMMON SENSE, SOMETHING SO OBVIOUS THAT IT GOES WITHOUT SAYING
C's hiring out their harbour
D's hire the harbour to keep the ship in
Failed to include a clause in the contract that the harbour needed to be deep enough to hold the ship
HELD - court implied a term concerning the depth the harbour had to be (therefore owners of the harbour were guilty) |
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Term
| Which three cases can be used to show terms implied in fact on the basis of business efficacy? |
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Definition
Shirlaw v Southern Foundries [1939]
A.G. of Belize v Belize Telecom Ltd [2009]
The Moorcook [1889] |
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Term
| Lord Justice Mackinnon - on Business efficacy |
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Definition
| 'that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common 'oh of course' |
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Term
| Terms implied by statute. s12 Sale of Goods Act 1979... |
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Definition
| Title - you must own the title to whatever you are selling |
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Term
|
Definition
TERMS IMPLIED BY STATUTE (s12 Title) - NEMO DAT QUI NON HABET
D sold C a stolen car
C had car repossesed
C sued D for return of monies
HELD - you must own the title to whatever you are selling, therefore, D couldn't sell the car as he didn't own the title to it |
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Term
| Terms implied by statute. s13 Sale of Goods Act 1979 |
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Definition
| Description - goods must match their description (although if the difference is really minor = acceptable... this exception came AFTER Arcos [1933] |
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Term
|
Definition
(the rule which caused the ruling in this case has since been abandoned by statute - at the time, it had to match EXACTLY, NOW = MORE FLEXIBLE)
TERMS IMPLIED BY STATUTE - (s13 Description)
C sold wooden sticks. In contract, sticks were described as being 8/16ths of an inch
When D received them, they turned out to be 9/16ths of an inch.
D rejected them (even though he still could have used them... as the real reason for rejection was that he had found a cheaper supplier & therefore D relied on the non-perfect match)
HELD - court reluctantly had to find in favour of the D... implied term that the item exactly matched the description |
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Term
| Terms implied by statute. s14 Sale of Goods Act 1979... |
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Definition
| Quality or firness for purpose - item must be fit for purpose |
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Term
|
Definition
TERMS IMPLIED BY STATUTE (s14 Fitness)
C purchased a hot water bottle from the D
Hot water bottle turned out to not be waterproof & exploded
HELD - impleied term that the hot water bottle was fit for purpose |
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Term
| Terms implied by statute. s15 Sale of Goods Act 1979... |
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Definition
| Sample - sample must correspond exactly with the item |
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Term
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Definition
TERMS IMPLIED BY STATUTE (s15 Sample)
C used a sample catapult
C then purchased a catapult
catapult her purchased was defective & he lost an eye
HELD - as the item purchased was defective, it was not the same as the sample. Implied term that the item sold would be the same as the sample. |
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Term
| s13, 14 & s15 Supply of goods and services Act 1982... |
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Definition
s13 = implied term that service will be done with due care and skill
s14 = implied term that service will be provided withn a reasonable time
s15 = implied term that the party contracting with the supplier will pay a reasonable charge. |
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Term
| A term implied in fact will only be implied into the contract if it is NECESSARY |
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Definition
| IMPLICATION IN FACT IS A MATTER OF STRICT NECESSITY |
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Term
| The parol evidence rule prevents the parties from adducing extrinsic evidence (especially oral evidence) to add to, vary or contradict the writing. It applies only to express terms and does not operate to prevent the implication of terms into the contract. |
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Definition
| The parol evidence rule prevents the parties from adducing extrinsic evidence (especially oral evidence) to add to, vary or contradict the writing. It applies only to express terms and does not operate to prevent the implication of terms into the contract. |
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