The document discusses the parol evidence rule and exceptions to it, as well as terms that may be implied in a contract. It examines whether statements made during negotiations are representations or terms of the contract. It also outlines implied terms in contracts for the sale of goods and supply of services under UK law.
The document discusses several key aspects of contract law:
1. The parol evidence rule, which generally prevents extrinsic evidence from varying or interpreting a written contract. There are exceptions where the written agreement was not intended as the whole contract or where evidence aids in establishing validity, implied terms, or operation of the contract.
2. Whether statements made during negotiations are representations or terms, which determines available remedies if incorrect. Intent, timing, importance, reduction to writing, and special knowledge are considered.
3. The classification of terms as conditions or warranties, where a breach of a condition allows contract repudiation but a warranty breach only allows damages. Some terms may have intermediate status depending on breach consequences
The document discusses how courts determine if parties intended an agreement to be legally binding. For social agreements between family/friends, there is a presumption they are not legally binding, but this can be rebutted. Business agreements are presumed to create legal relations. Exceptions where intent to form a contract may be lacking include vague promises, letters of comfort/intent depending on language, collective agreements unless in writing, and "free" gifts which courts have disagreed on how to classify.
Duress renders a contract voidable. Originally, only duress to the person through actual or threatened violence was recognized. While duress to goods, such as unlawfully detaining property, was not considered sufficient to avoid a contract. However, modern developments have extended the definition of duress to include economic duress, where commercial pressure suppresses a party's will. All that is now required to prove duress is suppression of voluntary consent, rather than completely overbearing a party's will. Remedies for duress include setting aside the contract, damages for the tort of intimidation, and potentially damages even if the contract was affirmed.
This document discusses several cases related to terms of contracts. It covers issues like whether oral statements became implied terms, when written terms took precedence over prior representations, conditions versus warranties, and implied terms. For example, it discusses a case where a statement about a motorcycle's model year was not considered a contractual term since it was not included in the later written agreement. It also examines cases focused on determining when exact compliance with a term was a condition allowing termination versus a warranty only permitting damages.
The document discusses the legal requirements and rules surrounding contract consideration. It defines consideration as requiring that both parties to a contract provide or promise something of value to each other. Consideration must not be past, must be sufficient though not necessarily adequate, and must move from the promisee. There are exceptions to these rules, such as previous requests creating consideration or part payment of debts under certain circumstances. The document outlines numerous other specific rules and exceptions governing what can and cannot constitute valid consideration in a contract.
The document discusses collateral contracts and their requirements. A collateral contract is a second agreement connected to an original contract. It allows pre-contractual statements to be enforced even if they are not written into the main contract. For a collateral contract to be valid, it must include consideration in the form of inducing the other party to enter the original contract. Two cases are described where plaintiffs successfully sued on the basis of collateral contracts for damages caused by defendants' pre-contractual promises about product quality that proved untrue. Collateral contracts allow courts to consider certain pre-contract statements as legally binding.
The document discusses the distinction between terms and mere representations in a contract. Terms form part of the contract while representations help induce the contract but do not form part of it. Whether a statement is a term or representation depends on factors like the statement's importance, any special knowledge or skill of the person making it, the time between the statement and contract formation, and whether it was reduced to writing. Breach of a term allows repudiation of the contract while breach of a representation only allows damages.
The document discusses several key aspects of contract law:
1. The parol evidence rule, which generally prevents extrinsic evidence from varying or interpreting a written contract. There are exceptions where the written agreement was not intended as the whole contract or where evidence aids in establishing validity, implied terms, or operation of the contract.
2. Whether statements made during negotiations are representations or terms, which determines available remedies if incorrect. Intent, timing, importance, reduction to writing, and special knowledge are considered.
3. The classification of terms as conditions or warranties, where a breach of a condition allows contract repudiation but a warranty breach only allows damages. Some terms may have intermediate status depending on breach consequences
The document discusses how courts determine if parties intended an agreement to be legally binding. For social agreements between family/friends, there is a presumption they are not legally binding, but this can be rebutted. Business agreements are presumed to create legal relations. Exceptions where intent to form a contract may be lacking include vague promises, letters of comfort/intent depending on language, collective agreements unless in writing, and "free" gifts which courts have disagreed on how to classify.
Duress renders a contract voidable. Originally, only duress to the person through actual or threatened violence was recognized. While duress to goods, such as unlawfully detaining property, was not considered sufficient to avoid a contract. However, modern developments have extended the definition of duress to include economic duress, where commercial pressure suppresses a party's will. All that is now required to prove duress is suppression of voluntary consent, rather than completely overbearing a party's will. Remedies for duress include setting aside the contract, damages for the tort of intimidation, and potentially damages even if the contract was affirmed.
This document discusses several cases related to terms of contracts. It covers issues like whether oral statements became implied terms, when written terms took precedence over prior representations, conditions versus warranties, and implied terms. For example, it discusses a case where a statement about a motorcycle's model year was not considered a contractual term since it was not included in the later written agreement. It also examines cases focused on determining when exact compliance with a term was a condition allowing termination versus a warranty only permitting damages.
The document discusses the legal requirements and rules surrounding contract consideration. It defines consideration as requiring that both parties to a contract provide or promise something of value to each other. Consideration must not be past, must be sufficient though not necessarily adequate, and must move from the promisee. There are exceptions to these rules, such as previous requests creating consideration or part payment of debts under certain circumstances. The document outlines numerous other specific rules and exceptions governing what can and cannot constitute valid consideration in a contract.
The document discusses collateral contracts and their requirements. A collateral contract is a second agreement connected to an original contract. It allows pre-contractual statements to be enforced even if they are not written into the main contract. For a collateral contract to be valid, it must include consideration in the form of inducing the other party to enter the original contract. Two cases are described where plaintiffs successfully sued on the basis of collateral contracts for damages caused by defendants' pre-contractual promises about product quality that proved untrue. Collateral contracts allow courts to consider certain pre-contract statements as legally binding.
The document discusses the distinction between terms and mere representations in a contract. Terms form part of the contract while representations help induce the contract but do not form part of it. Whether a statement is a term or representation depends on factors like the statement's importance, any special knowledge or skill of the person making it, the time between the statement and contract formation, and whether it was reduced to writing. Breach of a term allows repudiation of the contract while breach of a representation only allows damages.
The document discusses the capacity of various parties to enter into valid contracts under English law. It outlines several exceptions to the general rule that any person is competent to contract, including minors, those of unsound mind, drunkards, corporations, and more. It examines the contractual capacity and limitations of these groups in detail through explaining relevant case law and statutory provisions.
This document provides an introduction to the law of contract. It defines a contract as a legally binding agreement that can be enforced in courts. Contracts are classified as contracts by deed, which are formal legal documents, or simple contracts, which can be written, oral, or implied. Contracts are also classified as bilateral, involving promises exchanged between two parties, or unilateral, involving one promise in exchange for an act. The essential elements of a valid contract are agreement between the parties, consideration, intention to create legal relations, required form, capacity to contract, consent, and legality of purpose. Contracts can be void, voidable, or unenforceable depending on defects that impact validity or enforceability.
Consideration is a key element of a valid contract. It requires that both parties provide something of value - such as a promise to do something or forbear from doing something. Consideration must not be past, must be sufficient though not necessarily adequate, and must move from the promisee. Part payment of a debt generally does not constitute valid consideration, though there are exceptions such as when a third party makes the payment. The doctrine of promissory estoppel can also make a promise binding in some situations where consideration is lacking, if the promise was intended to be acted upon and it would be inequitable to allow the promisor to revert to their strict legal rights.
1. Pao On and Lau Yiu Long agreed to a share swap deal involving their companies. As part of the deal, Pao agreed not to sell 60% of the shares received for one year. Lau agreed to buy back those shares at $2.50 per share if the price dropped.
2. Pao later demanded that instead of a fixed buyback price, Lau merely indemnify him if the share price fell below $2.50. The House of Lords held this revised term was enforceable as it provided Pao additional protection and Lau suffered no detriment.
3. Consideration does not need to be contemporaneous, as long as it can be linked to the original agreement to
The document discusses the formation of a contract through offer and acceptance. It defines what constitutes a valid offer and acceptance under contract law. Some key points include:
- An offer is an expression of willingness to contract, while an invitation to treat is merely inviting offers.
- For a valid acceptance, the offeree must accept all terms of the offer without variation or new conditions.
- The general rule is that acceptance must be communicated to the offeror to form a binding contract, though there are some exceptions like the postal rule.
- An offer may be terminated by acceptance, rejection, revocation by the offeror, counteroffer, lapse of time, or failure of a condition of the
This document discusses key contractual terms, including:
1) Express terms must be incorporated in writing to form part of the contract. Oral statements not formally included do not vary the written terms.
2) Implied terms may be included where the contract is silent on an important matter as determined by law or the parties' conduct.
3) Parol evidence can be used to establish whether the contract is operative or if collateral oral contracts were formed related to but not varying the written terms.
The document discusses several cases related to (A) incorporation of terms into contracts, (B) interpretation of contracts, and (C) the Unfair Contract Terms Act 1977.
Key points include: terms may be incorporated through a consistent course of dealing between parties or if standard terms are understood in a particular industry; exclusion clauses must be brought reasonably to a party's attention; and non-signatories generally cannot benefit from limitation of liability clauses within contracts.
This document discusses the legal doctrine of duress across several contexts:
1) Duress to the person, where threats of violence can void agreements.
2) Duress to goods, where threats to seize property to extract payment may allow recovery of sums paid.
3) Economic duress, where threats to breach contracts or cause financial harm can also void agreements if the victim's will was overborne. The standards for economic duress require assessing the victim's protests and alternatives available.
Remedies for duress include recovering sums paid or treating agreements as voidable through the tort of intimidation.
The doctrine of privity of contract provides that only the parties to a contract can enforce rights or obligations under that contract. Over time, courts developed several exceptions to privity, including collateral contracts, agency relationships, and restrictive covenants that run with land. Academic debate questioned whether privity should be further modified or abolished. The Contracts (Rights of Third Parties) Act 1999 reformed English law by allowing expressly intended third party beneficiaries to directly enforce contract terms in certain circumstances.
The document discusses different types of mistake in contracts, including common mistake, unilateral mistake, and mistake as to identity. For common mistake, a contract may be void if there is a mistaken belief about a fundamental fact like the existence or quality of the subject matter. For unilateral mistake, the contract may be void if one party is aware of the other's mistake regarding a term. Mistake as to identity looks at whether parties intended to contract with each other or someone else. The remedies are different depending on whether the mistake renders the contract void at law or voidable in equity.
This document provides an overview of key cases related to the incorporation of terms in contracts, including express and implied terms. It summarizes several important cases that establish principles for determining whether representations, statements, or notices form binding contractual obligations based on an objective analysis of the parties' intentions and reasonable expectations. The document also examines the criteria for implying terms based on custom or the nature of the contract, including that implied terms must be reasonable, equitable, necessary for business efficacy, and not contradict express terms.
Mistakes can affect the validity of contracts in different ways depending on whether the mistake was common to both parties, unilateral, or mutual. [1] For a common mistake, the contract will usually be void if the subject matter does not exist or belongs to one party already. [2] For a unilateral mistake, the contract may be void if the mistaken party did not understand the contract terms and the other party was aware, while for identity mistakes additional conditions must be met depending on if parties were present. [3] For a mutual mistake where the parties misunderstood each other, the contract could be void if an objective reasonable person would not understand it in only one sense.
A misrepresentation is a false statement of fact that induces a party to enter a contract. While not a contractual term, a misrepresentation makes a contract voidable and allows the innocent party to rescind the contract and claim damages. There are three types of misrepresentations - fraudulent, negligent, and wholly innocent - which determine available remedies like rescission and damages claims.
The document provides an overview of the analytical framework of contract law. It discusses the key elements in the formation of contracts, including offers, acceptance, consideration, and intention to create legal relations. It also covers the requirements of certainty, completeness, and form in contracts. The document is divided into five parts that will examine how contracts are formed, the content of contracts, who can enforce contracts, how contracts can be destroyed, and how contracts come to an end or are discharged.
This document provides an overview of key cases related to the incorporation of terms in contracts, including express and implied terms. It summarizes several important cases that establish principles for determining whether representations, statements, or notices form binding contractual obligations based on an objective analysis of the parties' intentions and reasonable expectations. The document also examines factors courts consider when deciding whether to imply terms into a contract to give it business efficacy or based on custom and past dealings between the parties. An objective test of intention is established to determine the meaning of contract terms based on commercial reasonableness rather than subjective beliefs.
The document lists 16 cases relevant to the topic of consideration in contract law. It provides brief summaries of 3 key cases:
1. Currie v Misa - The House of Lords upheld the majority decision that a banker was entitled to payment from a purchaser of bills of exchange, even after the seller firm failed and payment was stopped.
2. Dunlop v Selfridge Ltd - The House of Lords held that a clause requiring payment of £5 per tyre sold below a set price was a genuine pre-estimate of damages and not a penalty, so it was enforceable.
3. Pao On v Lau Yiu Long - The Privy Council ruled that a promise to perform a pre-
1. This document discusses various cases related to misrepresentation in contracts. It examines different types of misrepresentation including false statements of fact, statements that induce a contract, and different categories of misrepresentation such as negligent or fraudulent misrepresentation.
2. The document also explores the remedies available for misrepresentation, such as rescission of the contract, claims for damages or indemnity. Key cases establish that a misrepresentation must be of a material fact rather than just opinion, and that it must have actually induced the claimant to enter into the contract.
3. The document provides an overview of English law on misrepresentation through analyzing numerous past cases that set precedents on important issues like what constitutes a misrepresentation,
The document summarizes several cases related to mistakes in contracts:
1) Common mistake cases establish that a contract may be void if both parties share the same mistaken assumption about essential facts, such as in Galloway v Galloway where a separation agreement was void since the marriage was invalid.
2) Unilateral mistake cases find that a contract is generally not voidable for a unilateral mistake about non-essential facts, such as quality, but may be if the mistake relates to the identity of the contracting party, as in Cundy v Lindsey.
3) Mutual mistake cases show a contract can be set aside if both parties share the same mistaken belief about an essential fact, such as in
This document summarizes cases related to the discharge of contracts through performance, agreement, breach, and frustration. It provides examples of when contracts can and cannot be discharged through each method. It also discusses the effects of a finding of frustration, such as allowing recovery of payments made prior to the frustrating event. The document is intended to serve as a reference for students studying contract law.
- A term is a legally binding statement that forms part of a contract, while a representation does not form part of the contract but can provide grounds for legal relief if it induces a party to enter the contract.
- Breach of a contractual term can allow the innocent party to sue for damages or rescind the contract, depending on whether the term is a condition or warranty. A breach of condition goes to the root of the contract, while a breach of warranty only allows damages.
- The cases of Bannerman v White and Routledge v McKay demonstrate how courts determine if a pre-contract statement was a representation or term based on factors like timing, inclusion in the written contract, and importance to the
The document discusses exclusion and limiting clauses in contracts. It covers (1) how such clauses must be incorporated into the contract through signing, notice, or previous dealings; (2) how the clauses must be interpreted to determine if they apply to the specific breach; and (3) restrictions on exclusion clauses under the Unfair Contract Terms Act 1977, which aims to protect consumers and make clauses reasonably enforceable only.
The document summarizes several common law cases dealing with mistakes in the formation of contracts:
1) Common mistake cases involve situations where there was a fundamental assumption or fact that was mistaken by both parties at the time of contract formation.
2) Unilateral mistake cases involve situations where one party was mistaken about a basic assumption when entering the contract, while the other party was not.
3) Mutual mistake cases involve situations where both parties were mistaken about the same fundamental assumption or fact when forming the contract.
The document provides brief summaries of several cases that exemplify each type of mistake.
The document discusses the capacity of various parties to enter into valid contracts under English law. It outlines several exceptions to the general rule that any person is competent to contract, including minors, those of unsound mind, drunkards, corporations, and more. It examines the contractual capacity and limitations of these groups in detail through explaining relevant case law and statutory provisions.
This document provides an introduction to the law of contract. It defines a contract as a legally binding agreement that can be enforced in courts. Contracts are classified as contracts by deed, which are formal legal documents, or simple contracts, which can be written, oral, or implied. Contracts are also classified as bilateral, involving promises exchanged between two parties, or unilateral, involving one promise in exchange for an act. The essential elements of a valid contract are agreement between the parties, consideration, intention to create legal relations, required form, capacity to contract, consent, and legality of purpose. Contracts can be void, voidable, or unenforceable depending on defects that impact validity or enforceability.
Consideration is a key element of a valid contract. It requires that both parties provide something of value - such as a promise to do something or forbear from doing something. Consideration must not be past, must be sufficient though not necessarily adequate, and must move from the promisee. Part payment of a debt generally does not constitute valid consideration, though there are exceptions such as when a third party makes the payment. The doctrine of promissory estoppel can also make a promise binding in some situations where consideration is lacking, if the promise was intended to be acted upon and it would be inequitable to allow the promisor to revert to their strict legal rights.
1. Pao On and Lau Yiu Long agreed to a share swap deal involving their companies. As part of the deal, Pao agreed not to sell 60% of the shares received for one year. Lau agreed to buy back those shares at $2.50 per share if the price dropped.
2. Pao later demanded that instead of a fixed buyback price, Lau merely indemnify him if the share price fell below $2.50. The House of Lords held this revised term was enforceable as it provided Pao additional protection and Lau suffered no detriment.
3. Consideration does not need to be contemporaneous, as long as it can be linked to the original agreement to
The document discusses the formation of a contract through offer and acceptance. It defines what constitutes a valid offer and acceptance under contract law. Some key points include:
- An offer is an expression of willingness to contract, while an invitation to treat is merely inviting offers.
- For a valid acceptance, the offeree must accept all terms of the offer without variation or new conditions.
- The general rule is that acceptance must be communicated to the offeror to form a binding contract, though there are some exceptions like the postal rule.
- An offer may be terminated by acceptance, rejection, revocation by the offeror, counteroffer, lapse of time, or failure of a condition of the
This document discusses key contractual terms, including:
1) Express terms must be incorporated in writing to form part of the contract. Oral statements not formally included do not vary the written terms.
2) Implied terms may be included where the contract is silent on an important matter as determined by law or the parties' conduct.
3) Parol evidence can be used to establish whether the contract is operative or if collateral oral contracts were formed related to but not varying the written terms.
The document discusses several cases related to (A) incorporation of terms into contracts, (B) interpretation of contracts, and (C) the Unfair Contract Terms Act 1977.
Key points include: terms may be incorporated through a consistent course of dealing between parties or if standard terms are understood in a particular industry; exclusion clauses must be brought reasonably to a party's attention; and non-signatories generally cannot benefit from limitation of liability clauses within contracts.
This document discusses the legal doctrine of duress across several contexts:
1) Duress to the person, where threats of violence can void agreements.
2) Duress to goods, where threats to seize property to extract payment may allow recovery of sums paid.
3) Economic duress, where threats to breach contracts or cause financial harm can also void agreements if the victim's will was overborne. The standards for economic duress require assessing the victim's protests and alternatives available.
Remedies for duress include recovering sums paid or treating agreements as voidable through the tort of intimidation.
The doctrine of privity of contract provides that only the parties to a contract can enforce rights or obligations under that contract. Over time, courts developed several exceptions to privity, including collateral contracts, agency relationships, and restrictive covenants that run with land. Academic debate questioned whether privity should be further modified or abolished. The Contracts (Rights of Third Parties) Act 1999 reformed English law by allowing expressly intended third party beneficiaries to directly enforce contract terms in certain circumstances.
The document discusses different types of mistake in contracts, including common mistake, unilateral mistake, and mistake as to identity. For common mistake, a contract may be void if there is a mistaken belief about a fundamental fact like the existence or quality of the subject matter. For unilateral mistake, the contract may be void if one party is aware of the other's mistake regarding a term. Mistake as to identity looks at whether parties intended to contract with each other or someone else. The remedies are different depending on whether the mistake renders the contract void at law or voidable in equity.
This document provides an overview of key cases related to the incorporation of terms in contracts, including express and implied terms. It summarizes several important cases that establish principles for determining whether representations, statements, or notices form binding contractual obligations based on an objective analysis of the parties' intentions and reasonable expectations. The document also examines the criteria for implying terms based on custom or the nature of the contract, including that implied terms must be reasonable, equitable, necessary for business efficacy, and not contradict express terms.
Mistakes can affect the validity of contracts in different ways depending on whether the mistake was common to both parties, unilateral, or mutual. [1] For a common mistake, the contract will usually be void if the subject matter does not exist or belongs to one party already. [2] For a unilateral mistake, the contract may be void if the mistaken party did not understand the contract terms and the other party was aware, while for identity mistakes additional conditions must be met depending on if parties were present. [3] For a mutual mistake where the parties misunderstood each other, the contract could be void if an objective reasonable person would not understand it in only one sense.
A misrepresentation is a false statement of fact that induces a party to enter a contract. While not a contractual term, a misrepresentation makes a contract voidable and allows the innocent party to rescind the contract and claim damages. There are three types of misrepresentations - fraudulent, negligent, and wholly innocent - which determine available remedies like rescission and damages claims.
The document provides an overview of the analytical framework of contract law. It discusses the key elements in the formation of contracts, including offers, acceptance, consideration, and intention to create legal relations. It also covers the requirements of certainty, completeness, and form in contracts. The document is divided into five parts that will examine how contracts are formed, the content of contracts, who can enforce contracts, how contracts can be destroyed, and how contracts come to an end or are discharged.
This document provides an overview of key cases related to the incorporation of terms in contracts, including express and implied terms. It summarizes several important cases that establish principles for determining whether representations, statements, or notices form binding contractual obligations based on an objective analysis of the parties' intentions and reasonable expectations. The document also examines factors courts consider when deciding whether to imply terms into a contract to give it business efficacy or based on custom and past dealings between the parties. An objective test of intention is established to determine the meaning of contract terms based on commercial reasonableness rather than subjective beliefs.
The document lists 16 cases relevant to the topic of consideration in contract law. It provides brief summaries of 3 key cases:
1. Currie v Misa - The House of Lords upheld the majority decision that a banker was entitled to payment from a purchaser of bills of exchange, even after the seller firm failed and payment was stopped.
2. Dunlop v Selfridge Ltd - The House of Lords held that a clause requiring payment of £5 per tyre sold below a set price was a genuine pre-estimate of damages and not a penalty, so it was enforceable.
3. Pao On v Lau Yiu Long - The Privy Council ruled that a promise to perform a pre-
1. This document discusses various cases related to misrepresentation in contracts. It examines different types of misrepresentation including false statements of fact, statements that induce a contract, and different categories of misrepresentation such as negligent or fraudulent misrepresentation.
2. The document also explores the remedies available for misrepresentation, such as rescission of the contract, claims for damages or indemnity. Key cases establish that a misrepresentation must be of a material fact rather than just opinion, and that it must have actually induced the claimant to enter into the contract.
3. The document provides an overview of English law on misrepresentation through analyzing numerous past cases that set precedents on important issues like what constitutes a misrepresentation,
The document summarizes several cases related to mistakes in contracts:
1) Common mistake cases establish that a contract may be void if both parties share the same mistaken assumption about essential facts, such as in Galloway v Galloway where a separation agreement was void since the marriage was invalid.
2) Unilateral mistake cases find that a contract is generally not voidable for a unilateral mistake about non-essential facts, such as quality, but may be if the mistake relates to the identity of the contracting party, as in Cundy v Lindsey.
3) Mutual mistake cases show a contract can be set aside if both parties share the same mistaken belief about an essential fact, such as in
This document summarizes cases related to the discharge of contracts through performance, agreement, breach, and frustration. It provides examples of when contracts can and cannot be discharged through each method. It also discusses the effects of a finding of frustration, such as allowing recovery of payments made prior to the frustrating event. The document is intended to serve as a reference for students studying contract law.
- A term is a legally binding statement that forms part of a contract, while a representation does not form part of the contract but can provide grounds for legal relief if it induces a party to enter the contract.
- Breach of a contractual term can allow the innocent party to sue for damages or rescind the contract, depending on whether the term is a condition or warranty. A breach of condition goes to the root of the contract, while a breach of warranty only allows damages.
- The cases of Bannerman v White and Routledge v McKay demonstrate how courts determine if a pre-contract statement was a representation or term based on factors like timing, inclusion in the written contract, and importance to the
The document discusses exclusion and limiting clauses in contracts. It covers (1) how such clauses must be incorporated into the contract through signing, notice, or previous dealings; (2) how the clauses must be interpreted to determine if they apply to the specific breach; and (3) restrictions on exclusion clauses under the Unfair Contract Terms Act 1977, which aims to protect consumers and make clauses reasonably enforceable only.
The document summarizes several common law cases dealing with mistakes in the formation of contracts:
1) Common mistake cases involve situations where there was a fundamental assumption or fact that was mistaken by both parties at the time of contract formation.
2) Unilateral mistake cases involve situations where one party was mistaken about a basic assumption when entering the contract, while the other party was not.
3) Mutual mistake cases involve situations where both parties were mistaken about the same fundamental assumption or fact when forming the contract.
The document provides brief summaries of several cases that exemplify each type of mistake.
The document provides an overview of the analytical framework of contract law. It discusses the key elements in the formation of contracts, including offers, acceptance, consideration, and intention to create legal relations. It also covers the requirements of certainty, completeness, and form in contracts. The document is divided into five parts that will examine how contracts are formed, the content of contracts, who can enforce contracts, how contracts can be destroyed, and how contracts come to an end or are discharged.
The document provides an overview of contract law, including definitions and key concepts. It discusses the requirements for a valid contract such as agreement, consideration, capacity and legality. It also covers types of contracts like bilateral vs unilateral, express vs implied, and executed vs executory contracts. Key elements of contract formation like offer, acceptance, intent and definiteness are explained. Interpretation of contracts and rules like plain meaning are also summarized.
This document provides an introduction and overview for studying the law of contract. It outlines the following:
- The purpose of the subject guide is to help students understand contract law by outlining key topics and issues, and providing guidance on essential and further readings.
- Students should aim to understand the underlying principles of contract law rather than just memorizing rules and cases. This requires repeatedly reading materials to fully comprehend topics.
- The main textbook is McKendrick's Contract Law. Understanding cases is also essential, as contract law is based on case law precedents. Grasping legal principles takes time, with 200-250 hours of study expected to thoroughly cover the syllabus.
- Students should work through
Elements of the l aw of contract part 1 chapters 1 to 4Ramona Vansluytman
This chapter introduces the subject guide for Elements of the law of contract. It outlines how the guide is intended to assist the student's learning by providing an overview and structure for each topic, while not replacing the core textbooks and materials. The chapter discusses how to use the guide effectively, including reading the relevant sections in the recommended textbooks and casebook multiple times. It emphasizes understanding the underlying principles of contract law over memorization of rules. Learning outcomes for the subject are provided, with the goal of developing a working knowledge and ability to apply and analyze contract law concepts.
This document outlines various cases related to the legal concept of undue influence. It divides the cases into two classes: 1) Actual undue influence, and 2) Presumed undue influence. Within the latter class, there are further divisions of 2A involving relationships of trust/confidence, and 2B involving other relationships. The document also discusses concepts such as manifest disadvantage and when undue influence may be presumed given certain relationships between parties.
This document discusses several cases related to the intention required to form a legally binding contract in both social/domestic and business contexts. In social agreements between family members, there is a presumption that the parties did not intend to create legal relations unless evidence shows otherwise, such as reliance on the agreement. In business dealings, there is a presumption that the parties did intend to create legal relations, though this can be rebutted by language suggesting the agreement was not formally binding or was an expression of present intentions. Factors like reliance, written terms, and consideration can indicate whether the parties had the requisite intention to form an enforceable contract.
Terms can be implied in a contract in three ways: by custom or trade usage, by law, or by courts.
For a term to be implied by custom or trade usage, it must be reasonable, certain, and notorious within the relevant industry. The custom cannot contradict the express terms of the contract. Terms may also be implied by law through common law precedents or statutes that apply to certain types of contracts.
Courts use the business efficacy and officious bystander tests to determine if a term should be implied. Under business efficacy, a term will be implied if it is necessary to make the transaction effective. The officious bystander test considers whether the term is so obvious that both parties would
The document lists 14 case citations related to consideration in contract law. Some key principles that can be drawn from the cases include:
1) Past services can provide consideration for a future promise if it can be implied that payment was intended for the past services at the time they were rendered.
2) A promise to perform a pre-existing contractual duty to a third party can constitute consideration.
3) Forbearance from suing on a debt can serve as consideration if promised in exchange.
4) Additional performance beyond a party's legal duty, if requested and paid for, can also provide consideration to support a contract.
The document provides a high level overview of important consideration-related cases
This is a presentation on the terms of a contract. It covers the general concepts of terms of a contract. It is ideal for beginner to intermediate level Contract Law students
Parol Evidence Rule Contract Law MalaysiaAzri Nadiah
The document discusses the parol evidence rule and its exceptions in Malaysian contract law. The parol evidence rule bars oral evidence that would contradict or vary the terms of a written contract. However, there are exceptions, including when (1) the contract is partly oral and partly written, (2) there is evidence of fraud, mistake or misrepresentation, or (3) there is evidence of a collateral contract. A collateral contract refers to a separate oral agreement made alongside the written contract. For a collateral contract to be valid, the party must strictly prove that the oral terms were intended to be binding and induced them to enter the contract. The document analyzes several cases that discuss and apply the parol evidence rule and its exceptions.
The document discusses key concepts in constructing contracts, including distinguishing between representations and terms, collateral contracts, and different types of contract terms. It covers determining whether a statement is a representation or term, exceptions to the parol evidence rule, criteria for enforceability of collateral contracts, implied terms, and the effect of exclusion clauses. The document provides definitions and guidelines for classifying different statements and terms, and outlining when they can create legal obligations or remedies.
Many contracts now require the contractor to "design and construct"; which attempts to make the contractor responsible for elements of design in the construction process. In many cases the requirements for the limits of design in the contractors scope of works are not sufficiently described, within either the tender or contractual documents. If the contractor has any concerns or doubts regarding the level of design responsibilities the contractor must ask for a "design brief".
A contract may be discharged in 3 ways: performance, agreement, or breach. Performance requires all terms to be precisely met but exceptions exist like partial performance or prevention of performance. Agreement allows discharge by accord, rescission, variation or waiver. Breach occurs if a party repudiates the contract or substantially fails their obligations, allowing the other party to treat the contract as discharged.
Business Law 1100Your pathway to Curtin. On campus. On tra.docxfelicidaddinwoodie
Business Law 1100
Your pathway to Curtin. On campus. On track.
www.curtincollege.edu.au
Diploma of
Commerce
Lecture Topic 5
Contents of a Contract
What to do this week
Attend seminar
Read chapter 6 of First Principles of Business Law
Do the tutorial ‘The contents of a contract’.
Note – do not need to cover the material on innominate terms or the Sale of Goods Act (no. 8 in tutorial). Do not need to read about this or do the tutorial for these rules of law.
Learning Outcomes
After completing this topic you should be able to:
explain the importance of terms
explain the notion of freedom of contract
distinguish between statements that become terms and statements that do not
distinguish between express terms and terms implied from the circumstances
establish the relative importance of particular terms
4
Learning Outcomes
After completing this topic you should be able to:
explain how agreed terms may be used to exclude liability
know how and when terms are put into a contract by law
5
Terms of the contract
A ‘term’ is a particular agreed undertaking or promise made in circumstances from which it can be inferred that it was intended to be legally binding.
The ‘terms of a contract’ describe the entire contents of a legally enforceable agreement.
6
Terms of the contract
Terms define the rights and duties of the parties.
Terms provide the yardstick by which performance of the contract is measured.
7
Terms are important because…
Breach of contract:
Failure to perform in accordance with the terms means that there is a breach of contract.
A breach of contract provides a ‘cause of action’
If sufficiently serious, a breach may justify a refusal to accept performance in addition to a claim for damages.
8
The importance of terms
In order to establish whether there was a breach giving rise to a cause of action must know:
An enforceable contract was created
What was promised in the contract -the terms of the contract.
The terms of a contract define the obligations of the parties. It is by analysing the terms that you can find out what has to be done to discharge those obligations
9
Freedom of contract
Persons are free to choose the contractual terms on which they will be bound.
The law usually does not interfere with this, but it does set some parameters e.g. illegal contracts are not enforceable.
The law also provides contractual protection for vulnerable parties e.g. minors, persons of unsound mind.
10
Proving the terms of a contract
Terms of wholly oral contracts are established by evidence from the parties themselves, or other witnesses.
Terms of wholly written contracts are proved by reference to the written contract alone – the ‘parol’ evidence rule’
11
Parol evidence rule
A rule of evidence that a written document expresses the whole contract
External evidence of intention and negotiations cannot be considered
The rule excludes oral statements of extra terms
LG .
The document discusses a case involving contracts between TAM's College and NAMS marketing firm. NAMS was hired for one month to promote TAM's but broke the contract after one week. TAM's sued based on a contract term requiring NAMS to refund fees and pay £1500 if they failed to deliver. TAM's was also sued under vicarious liability because a staff member was injured for not wearing proper attire as required. The document analyzes elements of a valid contract, different contract types, terms, and defenses. It contrasts tort and contractual liability, discusses negligence elements and defenses, and how vicarious liability applies to businesses.
This document discusses the parol evidence rule in contract law in Malaysia. It provides definitions of key concepts like contracts and the parol evidence rule. The main points are:
1) Sections 91 and 92 of Malaysia's Evidence Act 1950 govern the parol evidence rule - oral evidence cannot contradict a written contract except in specific exceptions.
2) There have been different interpretations by courts on when oral evidence can be admitted, with some cases taking a stricter view to protect the written terms.
3) Collateral contracts, being separate oral promises existing alongside the written contract, are one way oral evidence can be admitted without violating the parol evidence rule.
A Bird in the Hand Consideration and One-Sided Contract Modifications.pdfJessica Henderson
This document discusses the legal doctrine of consideration as it relates to contract modifications. It notes that while consideration is commonly viewed as an unnecessary doctrine that hampers contract law, its abolition is unlikely in the near future due to its flexibility. The document specifically examines how consideration requirements create issues for one-sided contract modifications where one party promises to do more or accept less. While courts have offered some solutions, the document argues these can be refined by recognizing that a party receiving promised performance provides a "bird in the hand" practical benefit to the other party, thus satisfying consideration and allowing enforcement of modifications.
Show Me My Money (Reisenfeld & Company v. The Network Group Inc..docxedmondpburgess27164
Show Me My Money (Reisenfeld & Company v. The Network Group Inc., p. 313)
Why does the court see this case as involving a quasi-contract as opposed to an actual contract? What other case law does the court rely on in finding precedent/support for compensating Reisenfeld? Does this decision appear to follow the golden rule guideline set forth in Chapter 2 (pp. 27 and 28)? Describe another example of an implied-in-fact or quasi-contract that you have experienced or is mentioned in the text.
Note: please read all the information correctly before you begin the assignment I have also copy and paste pages 27 and 28 that you would need to complete the assignment.
CASE
13-3
REISENFELD & CO. v. THE NETWORK GROUP, INC.;
BUILDERS SQUARE, INC.; KMART CORP. U.S. COURT OF APPEALS FOR THE SIXTH CIRCUIT 277 F.3d 856 U.S. App. (2002)
Network Group (“Network”) was contracted by BSI to assist in selling or subleasing closed Kmart stores in Ohio. A few years later, Network entered into a commission agreement with Reisenfeld, a real estate broker for Dick's Clothing and Sporting Goods (“Dicks”). Dicks then subleased two stores from BSI. According to executed assignment and assumption agreements signed in November of 1994, BSI was to pay a commission to Network. Network was then responsible, pursuant to the commission agreement with Reisenfeld, to pay a commission of $1 per square foot to Reisenfeld. There was no direct agreement made between BSI and Reisenfeld.
During this time, Network's sole shareholder was defrauding BSI. This shareholder was convicted of several criminal charges stemming from his fraudulent acts. Network was ordered by the district court to disgorge any commissions received from BSI, and BSI was relieved of any duty to pay additional commissions to Network. As such, Reisenfeld never received his commission related to the Dicks sublease.
Reisenfeld sued in state court for the $160,320 in commissions he had not been paid. In addition to suing Network, Reisenfeld also named BSI as a defendant. The suit alleged, among other things, that based on a theory of quasi-contracts, BSI was jointly and severally liable for the commission.
JUDGE BOOGS: . . .
A contract implied-in-law, or “quasi-contract,” is not a true contract, but instead a liability imposed by courts in order to prevent unjust enrichment. … Under Ohio law, there are three elements for a quasi-contract claim. There must be: (1) a benefit conferred by the plaintiff upon the defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment. …
There is no disagreement as to the first two requirements. It is clear that Reisenfeld's work as broker benefited BSI and that BSI was aware of the work Reisenfeld was doing. The disagreement rests on the third requirement—whether it would be unjust for BSI to retain the benefit it received without paying Reisenfeld for it. … U.
This document summarizes key aspects of Malaysia's Arbitration Act 2005.
It begins by explaining that the Act is based on the UNCITRAL Model Law and influenced by New Zealand's arbitration law. The purposes of the Act are to promote consistency with international standards, encourage arbitration as dispute resolution, and clarify the scope of judicial review of arbitral awards.
It then discusses the definition of an arbitration agreement under the Act and key principles like separability and arbitrability. Interim measures available from courts and arbitral tribunals are also summarized. The document provides examples of how the Act addresses issues like the form of arbitration agreements and a court's role when a dispute is also the subject of an
1. Consideration is what each party provides in a contract, such as money for goods. Executed consideration involves a thing in return for a promise, while executory consideration involves promises to perform future acts.
2. A party cannot claim consideration for doing something they are already legally obligated to do. A contract also requires an unforeseen event that radically changes completion and is not caused by either party to discharge the contract due to frustration.
3. An offer must be clearly defined and accepted for a contract to form, and an offer can end through rejection, lapse of time, or revocation. Acceptance generally occurs when a letter is posted, not received.
Powerpoint from textbook Business Law - the ethical, global, and e-commerce environment to accompany BA 330 course at the University of Alaska Fairbanks.
Contracts: characteristics and exercisesegonzalezlara
This document discusses different types of legal texts and contracts. It provides details on the key elements of a contract, including offer, acceptance, consideration. Defenses to the formation of a contract are also outlined, such as illegality, fraud, duress, lack of capacity. Common contract clauses like acceleration, assignment, confidentiality and termination are defined. The main types of contracts like purchase/sale, lease, and employment are also summarized along with typical terms and how they can be terminated.
A claim for quantum meruit seeks payment for work where the price was not agreed upon. It can be based in contract or restitution. For a contract-based claim, terms of payment will be implied if the contract is silent on price or expressly agrees to reasonable payment. A restitution claim seeks payment to prevent unjust enrichment. A quantum meruit claim will not succeed if a contract governs the situation. A letter of intent or agreement without a price may not create a binding contract if essential terms are missing or the intent to contract is unclear. Carrying out work alone does not create a contract.
Rights of the Parties and Discharge; Remedies for Breach of ContractHelpWithAssignment.com
Business law is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales.It is often considered to be a branch of civil law and deals with issues of both private law and public law.
13533 execution of contracts and legal remedies available for breach of contr...annu90
This document discusses execution of contracts and legal remedies for breach of contract. It defines what constitutes a valid contract and explains the standard form of contracts used commonly in business. It outlines four types of breach of contract: (1) renunciation or repudiation, where one party shows intention not to fulfill obligations; (2) anticipatory breach, where a party repudiates obligations before performance is due; (3) restitution, where an aggrieved party receives benefits from a defaulting party; and (4) actual breach from failure of performance. The document provides an overview of contract law and remedies available when contracts are breached.
Contract law lecture - 1 - definition and meaning(terminology)Dr. Arun Verma
The document discusses the definition and key concepts of contract law in India. It provides:
1) A definition of law and an overview of the Indian Contract Act, which establishes the general principles of contract law and special types of contracts.
2) Definitions and explanations of key contract terms like offer, acceptance, consideration, agreement, and void, voidable, and valid contracts.
3) An explanation that all contracts are agreements but not all agreements are contracts, as contracts must meet additional requirements of enforceability.
4) An overview of the essential elements a contract must have to be valid like offer, acceptance, lawful consideration, capacity of parties, free consent, lawful object, and certainty.
Beyond Degrees - Empowering the Workforce in the Context of Skills-First.pptxEduSkills OECD
Iván Bornacelly, Policy Analyst at the OECD Centre for Skills, OECD, presents at the webinar 'Tackling job market gaps with a skills-first approach' on 12 June 2024
LAND USE LAND COVER AND NDVI OF MIRZAPUR DISTRICT, UPRAHUL
This Dissertation explores the particular circumstances of Mirzapur, a region located in the
core of India. Mirzapur, with its varied terrains and abundant biodiversity, offers an optimal
environment for investigating the changes in vegetation cover dynamics. Our study utilizes
advanced technologies such as GIS (Geographic Information Systems) and Remote sensing to
analyze the transformations that have taken place over the course of a decade.
The complex relationship between human activities and the environment has been the focus
of extensive research and worry. As the global community grapples with swift urbanization,
population expansion, and economic progress, the effects on natural ecosystems are becoming
more evident. A crucial element of this impact is the alteration of vegetation cover, which plays a
significant role in maintaining the ecological equilibrium of our planet.Land serves as the foundation for all human activities and provides the necessary materials for
these activities. As the most crucial natural resource, its utilization by humans results in different
'Land uses,' which are determined by both human activities and the physical characteristics of the
land.
The utilization of land is impacted by human needs and environmental factors. In countries
like India, rapid population growth and the emphasis on extensive resource exploitation can lead
to significant land degradation, adversely affecting the region's land cover.
Therefore, human intervention has significantly influenced land use patterns over many
centuries, evolving its structure over time and space. In the present era, these changes have
accelerated due to factors such as agriculture and urbanization. Information regarding land use and
cover is essential for various planning and management tasks related to the Earth's surface,
providing crucial environmental data for scientific, resource management, policy purposes, and
diverse human activities.
Accurate understanding of land use and cover is imperative for the development planning
of any area. Consequently, a wide range of professionals, including earth system scientists, land
and water managers, and urban planners, are interested in obtaining data on land use and cover
changes, conversion trends, and other related patterns. The spatial dimensions of land use and
cover support policymakers and scientists in making well-informed decisions, as alterations in
these patterns indicate shifts in economic and social conditions. Monitoring such changes with the
help of Advanced technologies like Remote Sensing and Geographic Information Systems is
crucial for coordinated efforts across different administrative levels. Advanced technologies like
Remote Sensing and Geographic Information Systems
9
Changes in vegetation cover refer to variations in the distribution, composition, and overall
structure of plant communities across different temporal and spatial scales. These changes can
occur natural.
How to Make a Field Mandatory in Odoo 17Celine George
In Odoo, making a field required can be done through both Python code and XML views. When you set the required attribute to True in Python code, it makes the field required across all views where it's used. Conversely, when you set the required attribute in XML views, it makes the field required only in the context of that particular view.
Main Java[All of the Base Concepts}.docxadhitya5119
This is part 1 of my Java Learning Journey. This Contains Custom methods, classes, constructors, packages, multithreading , try- catch block, finally block and more.
Strategies for Effective Upskilling is a presentation by Chinwendu Peace in a Your Skill Boost Masterclass organisation by the Excellence Foundation for South Sudan on 08th and 09th June 2024 from 1 PM to 3 PM on each day.
Walmart Business+ and Spark Good for Nonprofits.pdfTechSoup
"Learn about all the ways Walmart supports nonprofit organizations.
You will hear from Liz Willett, the Head of Nonprofits, and hear about what Walmart is doing to help nonprofits, including Walmart Business and Spark Good. Walmart Business+ is a new offer for nonprofits that offers discounts and also streamlines nonprofits order and expense tracking, saving time and money.
The webinar may also give some examples on how nonprofits can best leverage Walmart Business+.
The event will cover the following::
Walmart Business + (https://business.walmart.com/plus) is a new shopping experience for nonprofits, schools, and local business customers that connects an exclusive online shopping experience to stores. Benefits include free delivery and shipping, a 'Spend Analytics” feature, special discounts, deals and tax-exempt shopping.
Special TechSoup offer for a free 180 days membership, and up to $150 in discounts on eligible orders.
Spark Good (walmart.com/sparkgood) is a charitable platform that enables nonprofits to receive donations directly from customers and associates.
Answers about how you can do more with Walmart!"
Leveraging Generative AI to Drive Nonprofit InnovationTechSoup
In this webinar, participants learned how to utilize Generative AI to streamline operations and elevate member engagement. Amazon Web Service experts provided a customer specific use cases and dived into low/no-code tools that are quick and easy to deploy through Amazon Web Service (AWS.)
Temple of Asclepius in Thrace. Excavation resultsKrassimira Luka
The temple and the sanctuary around were dedicated to Asklepios Zmidrenus. This name has been known since 1875 when an inscription dedicated to him was discovered in Rome. The inscription is dated in 227 AD and was left by soldiers originating from the city of Philippopolis (modern Plovdiv).
This document provides an overview of wound healing, its functions, stages, mechanisms, factors affecting it, and complications.
A wound is a break in the integrity of the skin or tissues, which may be associated with disruption of the structure and function.
Healing is the body’s response to injury in an attempt to restore normal structure and functions.
Healing can occur in two ways: Regeneration and Repair
There are 4 phases of wound healing: hemostasis, inflammation, proliferation, and remodeling. This document also describes the mechanism of wound healing. Factors that affect healing include infection, uncontrolled diabetes, poor nutrition, age, anemia, the presence of foreign bodies, etc.
Complications of wound healing like infection, hyperpigmentation of scar, contractures, and keloid formation.
ISO/IEC 27001, ISO/IEC 42001, and GDPR: Best Practices for Implementation and...PECB
Denis is a dynamic and results-driven Chief Information Officer (CIO) with a distinguished career spanning information systems analysis and technical project management. With a proven track record of spearheading the design and delivery of cutting-edge Information Management solutions, he has consistently elevated business operations, streamlined reporting functions, and maximized process efficiency.
Certified as an ISO/IEC 27001: Information Security Management Systems (ISMS) Lead Implementer, Data Protection Officer, and Cyber Risks Analyst, Denis brings a heightened focus on data security, privacy, and cyber resilience to every endeavor.
His expertise extends across a diverse spectrum of reporting, database, and web development applications, underpinned by an exceptional grasp of data storage and virtualization technologies. His proficiency in application testing, database administration, and data cleansing ensures seamless execution of complex projects.
What sets Denis apart is his comprehensive understanding of Business and Systems Analysis technologies, honed through involvement in all phases of the Software Development Lifecycle (SDLC). From meticulous requirements gathering to precise analysis, innovative design, rigorous development, thorough testing, and successful implementation, he has consistently delivered exceptional results.
Throughout his career, he has taken on multifaceted roles, from leading technical project management teams to owning solutions that drive operational excellence. His conscientious and proactive approach is unwavering, whether he is working independently or collaboratively within a team. His ability to connect with colleagues on a personal level underscores his commitment to fostering a harmonious and productive workplace environment.
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1. TERMS OF THE CONTRACT
1a. THE PAROL EVIDENCE RULE
The parol evidence rule is that where the record of a transaction is embodied in a document,
extrinsic evidence is not generally admissible to vary or interpret the document or as a substitute
for it.
According to GH Treitel, The Law of Contract, 9th ed. p176, there are obvious grounds of
convenience for the application of the parol evidence rule to contracts: certainty is promoted by
holding that parties who have reduced a contract to writing should be bound by the writing and
by the writing alone. On the other hand, the parol evidence rule will commonly be invoked
where a dispute arises after the time of contracting as to what was actually said at that time; and
in such cases one of the parties could feel aggrieved if evidence on the point were excluded
merely because the disputed term was not set out in the contractual document. Evidence extrinsic
to the document is therefore admitted in a number of situations which fall outside the scope of
the rule.
1b. EXCEPTIONS TO THE PAROL EVIDENCE RULE:
(A) WRITTEN AGREEMENT NOT THE WHOLE AGREEMENT
If the written agreement was not intended to be the whole contract on which the parties had
actually agreed, parol evidence is admissible. See:
Evans v Andrea Merzario [1976] 2 All ER 930.
(B) VALIDITY
Parol evidence may be given about the validity of the contract, eg to establish the presence or
absence of consideration or of contractual intention, or some invalidating cause such as
incapacity, misrepresentation, mistake or non est factum.
(C) IMPLIED TERMS
Where the contract is silent on a matter on which a term is normally implied by law, parol
evidence may be given to support, or to rebut, the usual implication. See:
Burges v Wickham (1836) 3 B & S 669
Page 1 of 9
2. (D) OPERATION OF THE CONTRACT
Parol evidence can be used to show that the contract does not yet operate, or that it has ceased to
operate. See:
Pym v Campbell (1856) 6 E & B 370.
(E) EVIDENCE AS TO PARTIES
Parol evidence can be used to show in what capacities the parties contracted, eg where a person
contracts ostensibly as principal, evidence is admissible to prove that he really acted as another's
agent so as to entitle the latter to sue (Humfrey v Dale (1857) 7 E & B 266).
(F) AID TO CONSTRUCTION
Where the words of the contract are clear, parol evidence cannot be used to explain their
meaning, unless they have a special meaning by custom. Parol evidence can, on the other hand,
be used to explain words or phrases which are ambiguous, or which, if taken literally, make no
sense, as well as technical terms.
(G) TO PROVE CUSTOM
Evidence of custom is admissible "to annex incidents to written contracts in matters with respect
to which they are silent." (Hutton v Warren (1836). Custom can also be used as an aid to
construction, eg in Smith v Wilson (1832) evidence was admitted of a local custom to show that
"1,000 rabbits" meant "1,200 rabbits."
(H) RECTIFICATION
A document may fail in accurately recording the true agreement. Equity allows such a written
contract to be rectified by parol evidence. (See handout on Mistake)
(I) COLLATERAL CONTRACT
Even though parol evidence cannot be used to vary or add to the terms of a written contract, it
may be possible to show that the parties made two related contracts, one written and the other
oral, ie a collateral contract. See:
City & Westminster Properties v Mudd [1959] Ch 129.
The Law Commission (1976) recommended that the rule should be abolished, but by 1986
concluded that it did not stop the courts accepting parol evidence if this was consistent with the
intention of the parties.
Page 2 of 9
3. 2a. REPRESENTATIONS AND TERMS
The first step in determining the terms of a contract is to establish what the parties said or wrote.
Statements made during the course of negotiations may traditionally be classed as
representations or terms and if one turns out to be wrong, the plaintiff's remedy will depend on
how the statement is classified:
A representation is a statement of fact made by one party which induces the other to enter into
the contract. If it turns out to be incorrect the innocent party may sue for misrepresentation.
Breach of a term of the contract entitles the injured party to claim damages and, if he has been
deprived substantially what he bargained for, he will also be able to repudiate the contract.
If a statement is not a term of the principal contract, it is possible that it may be enforced as a
collateral contract (which has developed rapidly in the twentieth century as a significant means
by which the difficulties of fixing a statement with contractual force may be circumvented).
How can the courts decide whether a statement is a term or a mere representation? It was
established in Heilbut, Symons & Co v Buckleton [1913] AC 30, that intention is the overall
guide as to whether a statement is a term of the contract. In seeking to implement the parties'
intentions and decide whether a statement is a term or a mere representation, the courts will
consider the following four factors:
(A) TIMING
The court will consider the lapse of time between the making of the statement and the contract's
conclusion: if the interval is short the statement is more likely to be a term. See:
Routledge v McKay [1954] 1 WLR 615
Schawel v Reade [1913] 2 IR 64.
(B) IMPORTANCE OF THE STATEMENT
The court will consider the importance of the truth of the statement as a pivotal factor in
finalising the contract. The statement may be of such importance that if it had not been made the
injured party would not have entered into the contract at all. See:
Bannerman v White (1861) CB(NS) 844
Couchman v Hill [1947] 1 All ER 103.
Page 3 of 9
4. (C) REDUCTION OF TERMS TO WRITING
The court will consider whether the statement was omitted in a later, formal contract in writing.
If the written contract does not incorporate the statement, this would suggest that the parties did
not intend the statement to be a contractual term. See:
Routledge v McKay [1954] 1 WLR 615
Birch v Paramount Estates (1956) 167.
(D) SPECIAL KNOWLEDGE/SKILLS
The court will consider whether the maker of the statement had specialist knowledge or was in a
better position than the other party to verify the statement's accuracy. See:
Harling v Eddy [1951] 2 KB 739
Oscar Chess v Williams [1957] 1 All ER 325
Dick Bentley Productions v Harold Smith Motors [1965] 2 All ER 65.
2b. CONDITIONS AND WARRANTIES
Traditionally terms have been divided into two categories: conditions and warranties.
(A) CONDITIONS
A condition is a major term which is vital to the main purpose of the contract. A breach of
condition will entitle the injured party to repudiate the contract and claim damages. The injured
party may also choose to go on with the contract, despite the breach, and recover damages
instead. See:
Poussard v Spiers (1876) 1 QBD 410
(Note: The word 'condition' also has another meaning. It may mean a stipulation that a contract
should not be enforceable except on the happening of a given event, or should be brought to an
end on the happening of a given event. The condition is then properly called a 'condition
precedent', or a 'condition subsequent' respectively. See Cheshire &Fifoot, p153-4).
(B) WARRANTIES
A warranty is a less important term: it does not go to the root of the contract. A breach of
warranty will only give the injured party the right to claim damages; he cannot repudiate the
contract. See:
Page 4 of 9
5. Bettini v Gye (1876) 1 QBD 183.
(C) INTERMEDIATE TERMS
It may be impossible to classify a term neatly in advance as either a condition or a warranty.
Some undertakings may occupy an intermediate position, in that the term can be assessed only in
the light of the consequences of a breach. If a breach of the term results in severe loss and
damage, the injured party will be entitled to repudiate the contract; where the breach involves
minor loss, the injured party's remedies will be restricted to damages. These intermediate terms
have also become known as innominate terms. See:
Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha [1962] 1 All ER 474
The MihalisAngelos [1971] 1 QB 164
The Hansa Nord [1976] QB 44
Reardon Smith Line v Hansen-Tangen [1976] 3 All ER 570
Bunge Corporation v Tradax Export [1981] 2 All ER 513.
(D) NOTE
If the term is described in the contract as a 'condition' that will not be conclusive. See:
Schuler v Wickman Machine Tools [1974] AC 235.
3. IMPLIED TERMS
In most contracts the primary obligations of the parties are contained in express terms. In
addition there are various circumstances in which extra terms may be implied into the agreement.
A) TERMS IMPLIED BY CUSTOM
The terms of a contract may have been negotiated against the background of the customs of a
particular locality or trade. The parties automatically assume that their contract will be subject to
such customs and so do not deal specifically with the matter in their contract. See:
Hutton v Warren (1836) 1 M&W 466.
B) TERMS IMPLIED BY THE COURT
(i) Intention of the Parties/Terms Implied as Fact
The courts will be prepared to imply a term into a contract in order to give effect to the obvious
intentions of the parties. Sometimes the point at issue has been overlooked or the parties have
Page 5 of 9
6. failed to express their intention clearly. In these circumstances, the court will supply a term in the
interests of 'business efficacy' so that the contract makes commercial sense. See:
The Moorcock (1889) 14 PD 64.
A more recent test is the 'officious bystander test' used to incorporate implied obvious terms
(Shirlaw v Southern Foundries [1940] AC 701). If while the parties were making their contract,
an officious bystander were to suggest some express provision, they would both reply, "oh, of
course." See, eg:
Wilson v Best Travel [1993] 1 All ER 353.
(ii) Relationship Between the Parties/Terms Implied by Law
In certain relationships and contracts the law seeks to impose a model or standardised set of
terms as a form of regulation. Such terms arising from the relationship between the parties will
be implied as of law. See:
Liverpool City Council v Irwin [1976] 2 All ER 39.
(C) TERMS IMPLIED BY STATUTE
SALE OF GOODS ACT 1979
Implied terms about title -
Section 12 provides:
(1) In a contract of sale … there is an implied term on the part of the seller that in the case of a
sale he has a right to sell the goods, and in the case of an agreement to sell he will have such a
right at the time when the property is to pass.
(2) In a contract of sale … there is also an implied term that-
(a) the goods are free, and will remain free until the time when the property is to pass, from any
charge or encumbrance not disclosed or known to the buyer before the contract is made, and
(b) the buyer will enjoy quiet possession of the goods except so far as it may be disturbed by the
owner of or other person entitled to the benefit of any charge or encumbrance so disclosed or
known.
The term implied by s12(1) is a condition and the term implied by s12(2) is a warranty: s12(5A).
Page 6 of 9
7. Sale by description -
Section 13 provides:
(1) Where there is a contract for the sale of goods by description, there is an implied term that the
goods will correspond with the description.
(1A) … the term implied by subsection (1) above is a condition.
(2) If the sale is by sample as well as by description it is not sufficient that the bulk of the goods
corresponds with the sample if the goods do not also correspond with the description.
Implied terms about quality or fitness -
Section 14 provides:
(2) Where the seller sells goods in the course of a business, there is an implied term that the
goods supplied under the contract are of satisfactory quality.
(2A) … goods are of satisfactory quality if they meet the standard that a reasonable person would
regard as satisfactory, taking account of any description of the goods, the price (if relevant) and
all other relevant circumstances.
(2B) … the quality of goods includes their state and condition and the following (among others)
are in appropriate cases aspects of the quality of goods -
(a) fitness for the purposes for which goods of the kind in question are commonly supplied,
(b) appearance and finish,
(c) freedom from minor defects,
(d) safety, and
(e) durability.
(2C) The term implied by subsection (2) above does not extend to any matter making the quality
of goods unsatisfactory -
(a) which is specifically drawn to the buyer's attention before the contract is made,
(b) where the buyer examines the goods before the contract is made, which that examination
ought to reveal, or
(c) in the case of a contract for sale by sample, which would have been apparent on a reasonable
examination of the sample.
(3) Where the seller sells goods in the course of a business and the buyer, expressly or by
implication, makes known -
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8. (a) to the seller …
any particular purpose for which the goods are being bought, there is an implied term that the
goods supplied under the contract are reasonably fit for that purpose, whether or not that is a
purpose for which such goods are commonly supplied, except where the circumstances show that
the buyer does not rely, or that it is unreasonable for him to rely, on the skill or judgment of the
seller …
The terms implied by sections 14(2) and (3) are conditions: s14(6)
Sale by sample -
Section 15 provides:
(2) In the case of a contract for sale by sample there is an implied term -
(a) that the bulk will correspond with the sample in quality;
(c) that the goods will be free from any defect, making their quality unsatisfactory, which would
not be apparent on reasonable examination of the sample.
The term implied by s15(2) is a condition: s15(3).
Modification of remedies for breach of condition in non-consumer cases -
Section 15A provides:
(1) Where in the case of a contract of sale -
(a) the buyer would, apart from this subsection, have the right to reject goods by reason of a
breach on the part of the seller of a term implied by sections 13, 14 or 15 above, but
(b) the breach is so slight that it would be unreasonable for him to reject them,then, if the buyer
does not deal as a consumer, the breach is not to be treated as a breach of condition but may be
treated as a breach of warranty.
(2) This section applies unless a contrary intention appears in, or is to be implied from, the
contract.
(3) It is for the seller to show that a breach fell within subsection (1)(b) above.
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9. SUPPLY OF GOODS AND SERVICES ACT 1982
Implied term about care and skill -
Section 13 provides:
In a contract for the supply of a service where the supplier is acting in the course of a business,
there is an implied term that the supplier will carry out the service with reasonable care and skill.
Implied term about time for performance -
Section 14 provides:
(1) Where, under a contract for the supply of a service by a supplier acting in the course of a
business, the time for the service to be carried out is not fixed by the contract, left to be fixed in a
manner agreed by the contract or determined by the course of dealing between the parties, there
is an implied term that the supplier will carry out the service within a reasonable time.
(2) What is reasonable time is a question of fact.
Implied term about consideration -
Section 15 provides:
(1) Where, under a contract for the supply of a service, the consideration for the service is not
determined by the contract, left to be determined in a manner agreed by the contract or
determined by the course of dealing between the parties, there is an implied term that the party
contracting with the supplier will pay a reasonable charge.
(2) What is a reasonable charge is a question of fact.
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