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CONTRACT:TERMS - Coggle Diagram
CONTRACT:TERMS
EXPRESS TERMS
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Signed written contract:
General rule: if the agreement is signed in the absence of fraud, parties are bound whether or not they have the terms of the agreement, and whether or not such terms are onerous.Expections:
- it there is an overriding oral assurance
- if the document is not reasonably expected to have a contractual effect, then it won't (e.g., timesheets, meeting memos).
- non est factum (parties is incapacitated from understanding what is the document).
Incorporation by notice:
- if reasonable steps have been taken to bring terms to the party's attention, that party's persistence with the transaction suggests an intention to be bound by them.
- what amounts to reasonable notice depends on the facts of the car (e.g., reference to a different document)
- if the terms are particularly adverse to the other party (onerous), the party seeking to incorporate them must clearly bring these to the other party's attention.
"...it would need to be printed in red ink, with a red hand pointing to it, or something equally startling to give sufficient notice"
For a clause to be incorporated into a contract, reasonable notice of it must be given before or at the time of contracting, not after.
Incorporation by cause of dealing:
- Course of dealing must be consistent and regular.
- Consistent: McCutcheon v David McBrayne was unsuccessful because sometimes a signature was required and other times it was not (inconsistent)
- Regular: three or four transaction over a course of five years was irregular. Three or four times per month and five instances over thirteen months was regular.
ENTIRE AGREEMENT CLAUSE:
In its simplest form, this clause provides that a particual document or set of documents constitutes the entire agreements between the parties.
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TYPES OF TERMS
Warranty:
- does not go to the root of the contract;
- in the case of a breach, the innocent party can only claim damages.
Innominate term:
- neither a condition nor a warranty at the outset;
- do the consequences of the breach deprive the party not in default of substantially the whole benefit of the contract?
Yes= condition, No= warranty.
Condition:
- goes to the root of the contract;
- in the case of a breach, the innocent party has the right to either terminate the contract and claim damages, or affirm the contract and claim damages.
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