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Terms I (Structure - 1. Type of contract - B2B/B2C (2.. Term -…

- - - - Interpret the words used to determine meaning
      - Parole evidence rule - extrinsic evidence may not be adduced to vary an express written contract - Jacobs v Batavia (1924)
        
        Non-paternalistic - freedom of contract - if terms aren't clear, can't use previous spoken negotiations as proof of particular meaning
        
        Avoiding
        
        Not wholly written contracts - J Evans & Sons v Andrea Merzario (1976)
        
        Collateral contracts - City of Westminster v Mudd (1959) - side deal to maintain contract
        
        Onerous terms - Interfoto v Stiletto (1988) - Lord Denning - if a term is particularly onerous to one of the parties, extra notice must be given
        
        Contracting into
        
        Entire agreement clauses
        
        Generic example: "This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter."
        
        Inntrepreneur Pub Co. v East Crown Ltd. (2000) - "The purpose of an entire agreement clause is to preclude a party to a written agreement threshing the undergrowth and finding in the course of negotiations some (chance) remark or statement (often long forgotten or difficult to recall or explain)."
    - - Ascertain parties' intentions, judged objectively
      - Distinguish between express oral terms and representations using these factors in an overall objective test
        
        Time - Routledge v McKay (1954) - statement was made well before the contract was concluded
        
        Importance - Bannerman v White (1861) - hops were bought on the basis that they didn't contain sulphur
        
        Specialist knowledge - Oscar Chess v Williams (1957)/Dick Bentley v Harold Smith Motors (1965) - contrasting cases - if the deal is made with someone who has specialist knowledge that you don't have, will likely be a term
        
        Checks/assumption of responsibility - Schawel v Reade (1913)/cf Hopkins v Tanqueray (1854) - if buyer tries to check and seller assures them they don't need to worry, will likely be a term
        
        Reduction to writing - Routledge v McKay/Birch v Paramount (1956) - if they thought was important, would have written it down
- - - - Common Law - implied as a necessary incident of a type of contract
        
        Test/general rule - necessary for this type of contract - usually based on wider policy considerations such as fairness
        
        Smith v Marrable (1843)
        
        Liverpool City Council v Irwin (1977)
        
        Malik/Mahmud v BCCI (1997)
        
        Crossley v Faithful & Gould Holdings Ltd (2004)
      - Statute
        
        B2B contracts
        
        Sale of Goods Act 1979 (SOGA) - as amended
        
        Implied terms that...
        
        S12 - seller has good title - Rowland v Divall (1933) - sold stolen goods
        
        Nemo dat qui non habet - "no one gives what he doesn't have" - purchase of possession from someone who has no ownership right to it also denies purchaser of ownership title
        
        S13 - goods correspond to description - Arcos v Ronassen (1933)
        
        S14 - satisfactory quality or fitness for purpose - Priest v Last (1903)
        
        S15 - goods correspond to sample - Godley v Perry (1960)
        
        Supply of Goods & Services Act 1982 (SGSA)
        
        Implied terms that...
        
        S13 - Service must be undertaken with due care and skill
        
        S14 - service must be undertaken within reasonable time
        
        S15 - customer must pay reasonable consideration
        
        B2C contracts
        
        Consumer Rights Act 2015 (CRA)
        
        Generally stricter on business side - used to be contained in the above Acts
    - - Effectively, implied on a "one off" basis to give business efficacy to contract - intention imputed to parties
        
        Test - term implied into an individual contract as necessary to give business efficacy to the contract/to effect the presumed intention of the parties
        
        Business efficacy - The Moorcock (1889)
        
        Officious bystander - "prima facie... something so obvious that it goes without saying; so that, if an official bystander were to suggest some express provision for it they would testily suppress him with a common 'Oh, of course'" - Shirlaw v Southern Foundries (1939) per MacKinnon J
        
        Equitable Life Assurances Society v Hyman (2002)
        
        AG of Belize v Belize Telecom (2009)
        
        Marks & Spencer v BNP Paribas (2015)