Lecture 3 - Terms and Content of a Contract Flashcards Preview

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Flashcards in Lecture 3 - Terms and Content of a Contract Deck (33)
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1
Q

What constitutes terms of contract?

A

Whatever parties have agreed

2
Q

‘Puffs’

A

Extravagant claims about product. No legal effect as no-one really believes them

3
Q

Representations

A

Pre-contractual statements intended to induce/ persuade other party to enter contract, but not part of it.

4
Q

If representation untrue…

A

Injured party should be able to rescind (cancel) contract and maybe claim damages unless totally innocent

5
Q

Terms

A

Statements incorporated into contract expressly/ by implication.

6
Q

If contract term broken…

A

Breach of contract

7
Q

If something really important part of the contract..

A

Is a term

8
Q

If one party asks other to check out particular statement for himself..

A

Unlikely to be term

9
Q

Whether one party has special skill or knowledge

A

Not important factor

10
Q

If statement made long before contract concluded

A

Evidence parties didn’t intend it to be a term

11
Q

Condition

A

Term vital/ fundamental to performance of contract

12
Q

If condition broken

A

Either:
- Treat contract as at an end
- Carry on with it
Either case, can also sue for damages for breach of contract

13
Q

Breach of warranty

A

Can only claim damages, not cancel contract

14
Q

Innominate terms

A

When impossible to say whether condition or warranty. If court thinks innocent party has been deprived substantially, treated as condition. If not, warranty

15
Q

Express terms

A

Clear, written or oral. What parties have expressly agreed

16
Q

Implied terms

A

Implied in contract without specifically being mentioned/ agreed by parties

17
Q

Terms implied (2)

A
  • By Statute eg Sale of Goods Act 1979

- By the court eg seems reasonable that parties intended that

18
Q

Two tests for terms:

A
  • Business efficacy - term is essential to make contract work properly
  • Officious bystander - if someone suggested to parties a particular clause, they would have said it was taken as read
19
Q

Customs

A

Local/ industry trade custom is implied in contract where necessary but has to be clear and definite.

20
Q

Can local trade/ custom override express terms of contract?

A

No

21
Q

Parol evidence rule

A

If all terms of contract are in writing, no evidence supporting different oral agreement is permitted to vary those terms

22
Q

Exceptions of parol evidence rule (3)

A
  • If written contract clearly not full agreement
  • Local/ trade custom
  • If written agreement does not reflect true terms
23
Q

Exclusion clause

A

Term in contract whereby one party attempts to limit liability in event of breach

24
Q

Main features of exclusion clause (3)

A
  • Exclusion > excluding liability for breach of contract
  • Limitation > limiting liability to specific amount
  • Conditions > imposing conditions before liability is accepted
25
Q

Criteria for exclusion clauses to be valid (4)

A
  • Must be incorporated into contract
  • Must be clear, unambiguous and cover exact situation
  • Must not fail for misrepresentation
  • Must not fall foul of statutory regulation eg death/ injury
26
Q

Incorporation of ECs (3)

A
  • EC must be term of contract
  • Notice must be given before contract entered into
  • Party whose terms and conditions were last in time wins battle (Battle of the Forms)
27
Q

EC (and only EC) invalid if

A

Entered into through fraud or misrepresentation

28
Q

The Unfair Contract Terms Act 1977 aimed more at

A

Unfair ECs

29
Q

ECs for Manufacturers’ guarantees

A

Liability cannot be excluded in such guarantees

30
Q

Unfair term =

A

Contrary to the requirement of good faith and causes a significant imbalance in parties’ rights and obligations

31
Q

Contracts voidable (and any money/ property recovered) if consent negated by: (3)

A
  • Physical threats (duress)
  • Excessive/ improper commercial pressure/ threats
  • Using influence to take unfair advantage
32
Q

Presumed undue influence

A

Automatically presumed in certain relationships eg parent and child, therefore must prove that they didn’t use undue influence

33
Q

If undue influence can be shown..

A

Innocent party relieved from obligations of contract, and can recover money paid/ property disposed of