Terms General A03

Question 1

Lack of certainty

Answer 1

Although conditions and warranties are certain they can be unfair and inflexible - in some cases a minor breach of a condition will give the right to repudiation but a major breach of warranty will give no right to repudiation - innominate terms look at the consequence of the breach itself making them more flexible and fair - this however makes them uncertain such as in the case of Hong Kong Fir Shipping - where they genuinely believed that there was a breach of contract repudiated the contract and were in the wrong themselves as it was only a warranty

Question 2

Departs from freedom of contract

Answer 2

its not the judges role to interfere in cases even if the cases lack certainty - in the case of conditions or warranties even if parties stated what classifies as each the courts still have the final decision

Question 3

Protecting the weaker party

Answer 3

although the courts can impose a decision on what is considered a condition or warranty this is to balance the conflicting interests of the weaker and dominant party and is done to make it more fair and protect the weaker party - CRA 2015 shows the law is moving towards protecting the consumer the case of Schuler v Wickman also does this where even though both parties had agreed to a condition the courts considered it a warranty - however in the case of Arnold v Britton the court upheld the parties agreements showing they will not necessarily step in and will allow common sense to prevail over language in a contract