what is a term
a promise made and included in the contract
- leads to a breach of contract if not followed
what is representation
a statement which induces the making of a contract
- leads to a misrepresentation
what will the courts take into account when deciding if something is a term or representation
- the importance attached to the representation
- special knowledge or skill of the person making the statement
- any time lag between making the statement and the contract being formed
- whether there’s a written contract
what is the case for when the statement is so important for the purchaser of the animal that it was taken as a term not a representation
coachman v hill
what is the case for it being a private seller who believed the car to be a newer model of car then it actually was, therefore representation not term
Oscar chess v williams
what is the case for if somebody has specialist knowledge when selling something, their statements are typically terms
dick Bentley v harold smith motors
what is an expressed term
- words agreed by the parties to be incorporated in their contract
- terms can be written or verbal
e.g price
what is an implied term
- these are terms which aren’t explicitly stated in the contract but are inferred
- inferred from common law or statute
- consumer rights act 2016
how can implied terms be inferred through common law
- business efficacy test/ officious bystander test
- custom or proie dealings between parties
what are the 2 parts of the business efficacy test
1- is the term necessary to make the contract effective
2- if the parties had thought about it would they have agreed that the suggested terms was obviously going to be in the contract
what is the officious bystander test
- if while the parties were making a bargain, an officious bystander had suggested something, they’d of thought ‘oh, of course’
e.g something so obvious it goes without saying (Shirlaw v southern foundaries
when will terms nit be implied
if the parties would never have agreed to it if they had thought about it (shell v Rostock garage)
consumer rights act 2015
what is a condition term
term so important that a failure to perform it would destroy the main purpose of the contract (poussard v spies)
if a condition term is breached what does the claimant have the right to do
- repudiate the contract or continue it, and/or
- claim damages
what is a warranty term
a minor term of the contract (Bettini v gye)
if a warranty term is breached what does the claimant have the right to do
claim damages
what is an innominate term
a term that isn’t clearly a condition or warranty
- the test is whether the party is deprived of substantially the whole benefit intended to get from the contract
