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Contents of Contract (If offer, acceptance, intention, consideration…
Contents of Contract
If offer, acceptance, intention, consideration present, there will be valid and enforceable contract
Pre-contractual statements (discussions, negotiations): Terms, Representations, Puff
Terms -> contract/bargain
- sets out rights & obligations
- legally binding
- may be express, implied, written or verbal
Representations (not part of parties' contract)
- Serious pre-contractual statements to induce other party to enter contract
- Legal consequences for misrepresentation
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Implied terms (opp of express)
- implied terms to make business sense, enforceable
Classification of Terms: Condition/Warranty App
- Conditions: vital and important terms
- the innocent party can kill the contract, sue for money or both, in case of violation by party in breach OR affirm the contract and fulfilled it
Poussard v Spiers & Pond - breach of condition
- Warranty: not as vital as conditions, innocent party cannot terminate contract
- Bettini v Gye - Bettini's absence did not fo to the root of the contract
Terms implied by Court
The Moorcock (1889) 14 PD 64 (CA)
- implied that wharf owner would guarantee that the boat can be safely moored there
- business efficacy test
Kay Lim Construction & Trading v Soon Douglas Pte Ltd [2012] SGHC 186
- SD was supposed to provide properly skilled and qualified labour, dismantle in a skilful and proper manner
- business efficacy and officious bystander test, those terms should be implied
Hutton v Warren
- farming tenancies implied that farmer had to be compensated for losses in the case of immature termination of contract
Terms implied by statute
- Sale of Goods Act
s12(1) implied condition of right to sell,
s14(2)satisfactory quality,
s14(3) goods are fit for their purpose Or circumstances show that it is unreasonable to rely on the skill/judgement of the seller
Classification of Terms: Innominate Terms
- should look at effect of breach, whether it substantially deprived innocent party of the whole benefit of contract, instead of whether it is a contract/warranty
Hongkong Fir Shipping v Kawasaki Kisen Kaisha
- KKK not entitled to terminate contract, only can sue for damages because did not substantially deprive of the whole benefit
Classification of Terms: Integrated Approach
RDC Concrete v Sato Kogyo
- RDC failed to deliver on 42 occasions, deducted differences from RDC, RDC suspended concrete supply, SK terminated contract with RDC
- court will consider if condition or warranty in light of parties' intentions. if warranty, apply Innominate term
Exclusion/Exemption Clause - exclude liability of one party by...
- signing contract that involves EC
- notice, wider the EC, more first party must draw to EC to the other party's attention
- Consistent with previous courses of dealings
Chapelton v Barry Urban District Council
- ticket counted as receipt
Olley v Marlborough Court Hotel
- EC must be introduced when contract is formed. Late notice is no incorporation
Unfair Contract Terms Act
s2(1) cannot by contract term/notice exclude/restrict liability for death/personal injury by negligence
s2(2)for loss/damage, cannot exclude/restrict if it satisfies requirement of reasonableness ADD MORE
Photo Production v Securicor Transport
Securicor could not force such action, EC covered Securicor employees actions
Kay Lim Construction & Trading v Soon Douglas ADD MORE
Indemnity is contractual allocation of risk between contracting parties Indemnitor will compensate on behalf of Indemnitee (indemnified person)
Contra Proferentum Rule - ambiguous term construed against the party who imposed the term/drafted the contract
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