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CONTENTS OF CONTRACT (Distinguishing between a Term and a Representation…
CONTENTS OF CONTRACT
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Terms
EXPRESS - clearly stated by parties orally or in writing; claimant must have had notice of the term; bound by all terms in the written contract whether read or not L'estrange v Graucob Ltd (1934) If signed by mistake or misprep not considered validly incorporated Curtis v Chemical Cleaning and Dyeing Co Ltd (1951); can be incorporated in oral contracts through actual notice (party knew about term at time of making),consistent course of dealing, common understanding Olley v Marlbrough Court Hotel (1949)
Reasonable notice if no actual notice: Timing of document Olley v Marlbrough Court Hotel (1949) Type of document containing the term Chapleton v Barry Urban District Council (1940) size and position of notice Parker v South Eastern Railway Company (1877) more onerous term more effort to bring to attention required Interfoto Picture Library Ltd v Stiletto Visual (1988) and Photolibrary Group Ltd V Burda (2008)
Common Understanding British Crane Hire Corp Ltd v Ipswich Plant Hire (1975) consistent dealing J Spurling v Bradshaw (1956)
IMPLIED - read into contract through statute, by custom or by Courts. Statute Consumer Rights Act 2015 (CRA 2015) replaces large sections of Sale of Goods Act (1979) and Supply of Goods and Services Act 1982 (SGSA 1982) CRA 2015 applies to all business to consumer contracts (sale contracts, transfer of goods, hire, hire purchase)
TERMS IMPLIED INTO ALL ABOVE: Goods Sold are; satisfactory quality s9 CRA 2015 and Bramhill v Edwards (2004) "of the standard a reasonable person would regard satisfactory" Assessed in terms of their: Fitness for purpose for which goods of that kind are usually supplied; appearance and finish; free from minor defects; safety; durability
Fit for any particular purpose made known to seller s10 CRA 2015: Lowe v W Machell Joinery Ltd (2001) If product has only one purpose the court will assume seller knew this (Priest v Last (1903)
Goods correspond with any description given S11 CRA 2015: Beale v Taylor (1967) applies even if misdescription does not effect seller Acros Ltd v E A Ronaasen & Son (1933) buyer must show he relied upon seller's description S11(2) CRA 2015 if sold by sample must match sample and description
Representation - Pre-contractual statements, Form no part of contract , if false injured party has rights to sue
Mere Puffs - Extravagant claim , no legal effect
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only request payment of reasonable price for service unless fixed price agreed as an express term s51
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Use reasonable care and skill carrying out the service s49 Davey v Cosmos Air Holidays (1989) Won Mee Wan v Kwan Kin Travel Services Ltd (1995)
S50 anything written or said to consumer, by or on behalf of trader, relating to trade or service, taken into account by consumer when considering to make contract will be an implied term of contract
CRA 2015 s2(9) (business to consumer) Digital Content - provides equivalent protection as for tangible goods, S34 Satisfactory Quality; s35 Fitness for purpose; s36 description
IMPLIED BY CUSTOM - rare today Hutton v Warren (1836) - Length of time of custom; reasonable to Imply term, inconsistent with any express term? acceptable
IMPLIED BY COURT - Implied by Law Liverpool City Council v Irwin (1976) - Business efficacy test; Shirlaw v Southern Foundaries Ltd (1939)/The Moorcock (1889) - Officious bystander rule
Conditions, Warranties and Innominate terms: Condition - goes to very root of contract breach allows damages and repudiation Warranty less fundamental does not discharge contract, only damages Poussard v Spiers and Pond (1876) and Gettini v Gye (1876) Innominate Term - not clearly defined, seriousness of breach on contract will determine how Court views Hong Kong (1962). Wait and see approach
CRA 2015 - statutory implied terms - courts view as innominate terms; slight breaches regarded as breaches of warranty