Terms implied clauses A03

Question 1

Freedom of contract should be maintained

Answer 1

Contract law is built on the principle of FOC - parties should be able to enter and agree on terms as they wish without interference - this gives clarity as what you enter is what you get and arguably allows for the wishes of both parties - individuals should take personal responsibility for a bad purchase - this is because of the Laissez faire approach where its seen as not the courts role to intervene and the caveat emptor principle of “let the buyer beware” - the idea is that the consumer and other would learn from this and avoid the seller in the future - however the courts are still careful in departing from freedom of contract as judges are not elected and so should have limited authority over changing the law and terms

Question 2

Consumer Rights Act 2015

Answer 2

protects the weaker party which is often the vulnerable consumer as they would not be in a position to ensure goods are of satisfactory quality so CRA brings fairness in this case
Implying terms into contracts under s.62 is correct as well as protecting people from death and personal injury under S.65 - this acts as a deterrent to companies to make them ensure safety reducing accidents
Overall the act ensures that the stronger party - businesses and traders do not exploit the consumer so the intervention into FOC is valid at the expense of some clarity

Question 3

Officious Bystander Test

Answer 3

with OBT and Business efficacy the term must either be so obvious as to go without saying or necessary for business efficacy however which is favoured is unclear
OFT is a good way of showing the court the intentions of the parties - however the standard isn’t realistic as 1 party may be willing to accept an implied term and the other argue the reverse which will make it unapplicable - especially in cases where one party was unaware of the term as they cant have had intention - some disputes therefore will not result in clarity

Question 4

In reality

Answer 4

in todays markets many of these terms especially those implied by the CRA 2015 are already expected by the consumer - even if they don’t fully understand section numbers or wording of their rights they know they have them - therefore the law is very much in line with public opinion