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EXPRESS TERM ((Promissory in nature (Has induced the party to enter into…
EXPRESS TERM
Promissory in nature
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Tan Swee Hoe Co Ltd v Ali Hussain Bros: The parties must have intended or must be taken to have intended that the oral promise was to form part of the basis of the contractual relations between them.
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To overcome parole evidence rule to admit pre- contractual statements which had not been incorporated into the written agreement.
Tests/ Guidelines
Time lapse
Routledge v Mckay : The court held that it was a term as the contract was entered one week after the negotiation.
court will consider the length of time between the making of the statement and the conclusion of the contract.
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The writing factor
If the statement is importance, it would have been concluded in the contract.
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Exception under S. 92
S. 92(a): Any fact may be proved which would invalidate any document or entitle any person to any decree of order relating thereto
S. 92(b): The existence of any separate oral agreement, as to any matter on which the document is silent and not inconsistent with its terms. (collateral contract)
S. 92 (c): The existing of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract.
Tindok Besar Estate Sdn Bhd v Tinjar Co : The Federal Court held that the evidence sought to be adduced did not come within provisos (a) or (b) of Section 92, but was evidence adding a new term to the agreement.
Classification of term
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Warranty
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Bettini v Gye : The term regarding rehearsals was not a condition and did not go to the root of the contract. Thus, its breach did not entitle the defendant to rescind the contract.
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Parole Evidence Rule
Prohibits a person from adducing oral evidence where the terms of the contract have been put into writing.
S. 91 Evidence Act 1950 : Whenever the terms of the contract has been consented to adduce into written document, there shall not be any other evidence be given in proof except the document itself.
Section 92 Evidence Act 1950: When the written contract has been consented by both parties to be adduced in a written document, no other document can be accepted to verifying, invalidate and contradicting the document.
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