Terms and representations
- Created by: Freya Lindsey
- Created on: 18-11-15 11:07
View mindmap
- Contractual Terms
- What is a term?
- Failure to fulfil a term is a breach of contract.
- A breach of contract results in a remedy which matches the party's 'expectation interest'.
- Where the breach is one of a condition, the contract may be set aside.
- There are three tests for determining whether something is a term.
- Verification. A statement is not likely to be a term if a party has to check whether it is true. In Schawel v Reade, the buyer relied on the statement without verification and so it was held to be a term that the horse was 'sound'.
- Importance. Would the buyer have entered the contract if the statement had not been made? Bannerman v White - the buyer would not have bought the hops if he had known that they had been treated with sulphur.
- Special knowledge. If the person making the statement has special knowledge, their statement will be seen as a term. In Oscar Chess v Williams a statement as to the car's age was not held to be a term because the buyers were car dealers.
- Failure to fulfil a term is a breach of contract.
- What is a representation?
- This might be a statement of opinion or 'mere puff'.
- A representation is unlikely to be incorporated into a contract. In Ecay v Godfrey, a seller of a boat said that it was sound, but that the buyer should have it surveyed to check. This was therefore a representation.
- A representation can become a term as in Pennsylvania Shipping Co where the representation merged in the higher contractual right'.
- Damages are available for a misrepresentation. These are calculated based on the loss the misrep has caused.
- This might be a statement of opinion or 'mere puff'.
- What is a term?
Comments
No comments have yet been made