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contractrual terms - Coggle Diagram
contractrual terms
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implied term
terms implied by court
trade or custom
where the iimplied term is prevealant in a trade or where an established trade usuage can be demosntration
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speciailr elationshop
terjms can be implied because of the anture of the relatunship between the aprties such as ladnlord and tenant and employer and employee
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officious bystander test
the implied term is so obvious that both parties would have agreeed to it fi it would have been suggested by an officious bystander had bhe pbeen opresent at the time the contract was made - shirlaw v southern foundries
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good faith
an unexpressed term of ageneral dyty to eprform the contract in good faith is likely applied to all commercal agreements
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parol evoidence rule
governs what kind of evidence parties to ad ispute can introduce when trying to determine the specific terms of a contract
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reationalte
teh contract parties ghave reduced their agreement to a final written contract and decided to leave other elements ofur t og it, so extrinsic evidence of past agreement should not be considered anymore
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representaition
it is a statement of fact or opinion that is not apry of the contract
the truth is not gauranteed by the perosn making it, this means that it does nto give rise toa contractual obliagtion adn has no legal signigicance
mere representatiion
it is a tstement that does nto form oparty of a contract, so there is no breach of contract if it is not true. Someone who suffers a loss as a result of relaince upon a mere rpreserentaiton will not be able to sue for breach of contratc, may have other remediesavaulable
puff
it is a ststatement nor eaosnable person would take seriously. it does not guve rise to any legal obligation asnd hsas no legal signifiance
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terms implied by statue
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in those insatnces, teh terms are implied or duties imposed because parlaiament legislates that the term will be in teh cotnract
for example
section 9(1) of the consumer rights act 2015 implies a duty as between a business and consumer to provide goods of satisfactory quality
notably
business to business contracts and business to consumer contracts are subejct to two separate statutory regimes
the Salw od goods act 1979 and spply of goods adn services act 1982 will apply in the course of a business and form implied terms for b2b contracts
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conttractual term
it is any provision forming apry of a contract, each of which gives rise toa c ontractual obligation
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however, not all terms ate stated expresslly as some terms may be implied nad may carry less legal gravity but depends on where they come from
breach of contract
it occurs where one aprty ahs failed to perform is expected not to perform his contractual obligations
anticipatory beach
one partry announces in advance of teh due date that he intends not to perform his obligations or that he will fail to perform his obligations. the innceont party may sue for damages immediately after the breach is announced
actual breahc
one party refuses to perform his obligations on the due date or he performs his obliagtions incompletely
recisision
in its oridnaryt sense, it refers to the cancellation of a contratc adn the return of the aprties to the positions they would g have had if the contratc ahd not been amade t
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key terminology
repuduaition
it is adeclaration made by a party, verbal or by conduct, thathe uis not willing or unable to perform his obligatoons under the contract. its different from recission which is imposed by the court as an equitabler emedy. Repudiation is declared by the contratc party
collateral contract
exists as a seprarte contract that coexists side by side with the main contract, it is enforceable even thugh the main contract doesnt contain any term of the collateral term
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express term
it is a contrractual provision that has been explicitly agreed between the aprties duringnegoatiation and in the written contract
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classificaiton of terms
primary obligation
it is a mjor term or ocndition that must eb fulfilled. a breach of primary obligatoon gices rise toa s econdary obligation to pay damages for loss caused
the innceot party can either termianate the contract and claim danages or affirm yteh contract - accept the breach and insist on continued performance of contract and c.aim damages
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innominate term
previosuky, a breahc of a contract term that was not classified as a condirion gave no rifht to termainate the conrract, noi matter how serious the cosnequence was for the innceont party
HOWEVER
Hong kong fir shipping v kawasaki 1962created a new categorty of terms that are ntiehr known as conditions or warrenties,known as innonimate or intermaediate terms
for teh rbeach fo such terms, the court will decide whether the innceotn aprty has the rifht to rescind in the ligh to fthe seriousness of the conseuqences fo the breach
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