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Terms
Express terms-
Whatever the parties have expressly agreed
upon.
Implied Terms:
What the law has decided should be included
in the contract.
Terms-Types
Contents of representation:
Current facts
Intention of the parties.
Trade puff
Mere opinion
Mere represnation
Representation
Trade Puff:
Puffs are mere boasts or unascertained claims
Carlsberg-Probably the best lager in the world
They are nothing more than a catchy gimmick
used in order to highlight the product that is being
sold.
It is not intended to be taken seriously but to
catch the attention.
It is assumed that nobody would take them
seriously.
Representation
Trade Puff:
Statement made Puff achieves
more closer to factuality legal Significance
The rule states that where the parties to a contract intended for their
written agreement to be the full and final expression of their bargain
(i.e., the writing is an integration),
other written or oral agreements that were made prior to or simultaneous with the
writing are inadmissible for the purpose of changing the terms of the original
agreement.
Factors relevant to incorporating terms
Merchantable means as being fit for the purpose for which goods of
the kind were commonly supplied.
Narrow meaning
The contract was for the sale and purchase of a brand new Range
Rover
The car misfired and had oil leak and there were scratches on the
paintwork
The court held that the car was not of merchantable quality.
Fitness for all the purposes for which goods of the kind are commonly
supplied.
A boy was injured in the eye when the elastic snapped on a catapult
that he had bought from retailer
The retailer had taken supplies of the toy after seeing a sample.
Seller was able to show that he had tested the sample and
the catapult did not match the sample
The manufacturer was in breach.
Terms Implied by Statute :
Supply of Goods and Services Act 1982
Section 14-If time for carrying out the service is not fixed
there is implied term that the supplier will carry out the
service within a reasonable time.
Charnock v Liverpool Corporation (1968)
Terms
Terms critical to the central All other Terms Remedy depends on the
purpose of the contract consequence of breach
The relative significance of term
Conditions:
Term of a contract which is so important to the contract that failure
to perform the term would render the term meaningless and
Both
Repudiation:
Clear and absolute refusal to perform, which includes
conduct showing the party is unwilling, even though
he may be able, to perform.
Conditions:
Poussard v Spires and Pond (1876)
Warranties:
Warranties are regarded as minor terms of the contract
These are residual category of terms dealing with obligations that are
either ancillary secondary to the major purpose of the contract.
Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd. (1962)
The relative significance of term
Even though a term is stated as being as condition it
may be construed as a warranty by the court
Schuler (L) AG v Wickman Machine Tool Sales Ltd (1974)
An agency contract
W was appointed sole distributor of Ss Presses
It was stated as a condition of the contract that Ws representatives
would make weekly visits to six large UK motor manufacturers to solicit
orders for presses.
A further term stated that contract could be terminated for a breach of
an condition in the contract that was not remedied within 60 days.
The duraton of contract was more than four years amounting to more
than 1400 visits.
Ws representatives failed to make a visit
S sought to terminate the contract
The relative significance of term
Schuler (L) AG v Wickman Machine Tool Sales Ltd (1974)
HL held that it was inevitable that during the length of the contract
there would be occasions when maintaining weekly visits would be
impossible
HL also held that the effect of accepting the term as condition would
be to entitle S to terminate the contract even if there was only one
failure to visit out of the 1400
This would be an unreasonable burden on W and the term could not
stand as a condition.
despite the fact that the term has been stated in the contract as a
condition
Because it did not demonstrate the actual characteristics of a condition
The court was unable to accept that repudiation of the party was
lawful
The court held that despite the classification of the term as in the
contract the only available remedy would have been damages as for
breaches of terms generally.
The relative significance of term
Statement
Terms Representation
Terms critical to the central All other Terms Remedy depends on the
purpose of the contract consequence of breach
Thank you.