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contract green assessment - Coggle Diagram
contract green assessment
terms
express
verbally stated or written provisions in the contract
implied
a term will be implied where necessary to bring the contract into line with the intention of the parties
common law
The Moorcock
- implied that boat would be safe
Schawel
horse unable to do job it was bought for, implied it could
Shirlaw
officious bystander test 'so obvious it goes without saying
Shell
there isn't an implied term if a party would never have agreed to it
Paribas
confirmed business efficacy/officious bystander test, what would a reasonable person have agreed
Hutton
implied by custom
Hillas
prior dealings
statute
business to business
Sale of Goods Act 1979
s13
correspond to description
s14(2)
goods of satisfactory quality
s14(3)
fit for purpose
Moore
packaged differently
Beale
cut n shut car**
Sale of Goods and Services Act 1982
s13
reasonable care and skill
S14
reasonable time
Thake
expected level of care from a professional
business to consumer
Consumer Rights Act 2015
s9
satisfactory quality
s10
fit for purpose
s11
match description
consider description, price etc
Rogers
high expectations for new landrover
won't apply if buyer warned beforehand
no need to explain if for usual purpose
Grant
unless abnormal sensitivity
Griffiths
eczema, itchy coat
can be implied description eg display or logo on car
Beale
types of term
conditions
vital
C's decision to end or continue the contract
Glaholm v Hays
Poussard v Spiers
warranties
minor
C must continue the contract
Betini v Gye
innominate terms
depends on nature of breach
C's decision if serious, must continue if not
Hong Kong Fir Shipping
breaches which will deprive the party not in default of substantially the whole benefit
exclusion and limitation clauses
Signed
L'Estrange v Graucob
unless
Curtis v Chemical Cleaning
Reasonable notice
Olley v Malborough Court Hotel
Parker v South Eastern Railway
Thornton v Shoe Lane Parking
Previous dealings
McCutcheon v David MacBrayne
Privity applies to 3rd parties
Scruttons v Midland Silicones
unless
Contract (Right of 3rd Parties Act)
Unfair Contract Terms Act 1977
business to business
VOID
s2(1)
cannot exclude liability for death/serious injury caused by neggligence
s2(2)
cannot exclude liability for other loss/damage caused by negligence except when reasonable
**s6(1) implied conditions about description and fit for purpose cannot be excluded
ONLY VALID IF REASONABLE
for when one party contracts with another on their standard written terms
*s11(5)
party trying to use the clause must show it is reasonable in all the circumstances
Warren v Trueprint
Reasonableness test
s11(1)
was it reasonable given what the parties knew at the time
Schedule 2
consider bargaining power, availability of alternative, whether term was known, practicality of compliance
s11(4)
money available to meet liability, chance of insurance
Consumer Rights Act 2015
business to consumer
VOID
s65
any attempt to exclude limit liability for death/serious injury is invalid
s31
any attempt to limit exclude: fit for purpose, as described, match model seen/described invalid
s57
cannot exclude service performed with reasonable care/skill, in reasonable time, info about trade
GENERAL FAIRNESS
s62
all terms must be fair
unfair = puts the consumer at a disadvantage, by limiting rights or disproportionately increasing obligations
Remedies
consumer remedies under CRA 2015
s20
short-term right to reject
s23
right to repair or replacement
s24
right to a reduction or final right to reject
first 30 days only
formation evaluation
offer
distinction between offer and invite to treat is necessary to allow freedom of contract - gives the seller the right to choose whether or not to contract when buyer makes offer
useful for age restricted goods or those that require a pharmacist. if offer was goods on shelf then acceptance would be when put in basket, making it impractical to have products available
(Boots)
would be theft if buyer changed mind
counter offers and requests for info not easily distinguishable
(Stevenson v McLean)
offers being open for 'reasonable' amount of time leaves uncertainty, inconsistency in decision making
(Ramsgate Hotel v Montefiore)
acceptance
no acceptance by silence rule important to ensure contracts not entered into unknowingly
acceptance must normally be effectively communicated but this is waived for unilateral offer cases like
(Carlil v Carbolic Smoke Ball)
postal rule
(Adams v Linsell)
is unfair on the person who does not receive acceptance
Thomas v BPE
has left uncertainty around the point of acceptance with modern methods, depends on the intention of the parties, business practice and where risk should lie (business hours)
intent to create legal relations
some consider unnecessary if all other elements present and no contrary statement
objective test alone of whether it seems parties wanted to be bound would sufice
decision about whether agreement is commercial/domestic unclear
(Sadler v Reynolds)
Appleson
shows how lack of understanding can be exploited with a rebuttal of the presumption written into a contract that may not be noticed or someone may lack the bargaining power to argue
Jones v Padavatton
evidence of presumptions can be unclear - inconsistency in decision making
consideration
Lord Goff suggested eliminating but this would make gifts enforceable
suficiency seems strange, courts have stretched rules - peppercorn leases
inconsistent decision making on intangible matters
Ward
White
Past consideration generally not consideration but can be interpreted as implied promise to pay
Lampleigh
- courts will interpret outcome they want
existence of promissory estoppel limits freedom of contract but ensures law is moral in ensuring promises are not broken if relied upon
privity
positive as stops 3rd parties being bound by contracts they weren't a part of
harsh but exceptions from common law/rights of 3rd parties act provide solutions to
Beswick
- where no person who had suffered could not sue but person who could sue suffered no loss
has cleared up common law confusion. except collateral contracts
exclusion clauses can be added to stop 3rd parties obtaining rights to the contract