CONTENT

Introduction

Under CA 1950 does not contain any provision which deals specifically with the contents of a contract.

Contents of a contract are TERMS.

The terms of a contract are its contents and it is these that spell out the rights and obligations of the parties under the contract.

Conclude : contents of a contract is the rights & obligations of the parties are determined by the terms of the contract.

(1) Express terms

A term is express if it has been specifically agreed upon by parties to a contract and it may either be in oral, writing or both.

Identification of express terms is relatively straightforward.

If no documents exist, it becomes necessary to look back at the negotiations conducted by the parties and determine which oral statements were intended by the parties to operate as terms.

  • The express terms of a contract are those provisions specifically agreed to by the parties.
  • They may relate to matters such as price, quantity, quality, size, colour or delivery date.
  • These specifications may be agreed to wholly by word of mouth, they may be set forth entirely in a written document or they may be found in a combination of an oral agreement and a writing.

(2) Implied terms

...is a term that the parties have not specifically included in the contract or even discussed in the negotiations leading up to that contract.

Terms may be implied by :

  • Custom and usage pertaining to a particular type of transaction;
    (practices of particular trade)


  • Statutory provisions; and
    (eg statutes are The sale of goods act 1957, the hire-purchase act 1967 and national land code 1965).


  • The courts, based on the intention of the parties.
    (court will implied a term in a contract when implied term appears to be inconsistent with the intention of the parties.)

(3) Conditions and warranties

Conditions

Reasons why court will imply terms into a contract :

  • The courts are only too aware that many contracts are drafted in haste with insufficient attention to detail.


  • There is the public policy interest upholding and supporting commercial contracts generally - as to give life to presumed intention of the parties.


  • The court willing to imply where it is necessary to give business efficacy to the contract where the term implied represents the obvious, but unexpressed, intention of the parties.

Warranty

Vital part of the contract.

Lesser term of contract.

Breach may be repudiated.

Breach may not be repudiated.

Only sue for damages.

And/or sue damages = VOIDABLE.

Example of cases

Tests to distinguish a condition from warranty :

  • Whether or not a term goes to the root of a contract. (how important is the term to the entire contract?)
  • The relative importance of the term to a party. (a party ❌entered into a contract unless assured of strict compliance with the term and the party in breach was aware of this, it would be considered a condition.)
  • Whether consequences of breach are serious. - innominate terms

Innominate Term

  • To determine whether this term is at condition/warranty, the courts will look at what is a consequences of not following this.
  • If material breach - remedies the same as for a condition. (serious issue)
  • If immaterial breach - remedies the same as for a warranty. (minor issue)