Positive Terms in Contracts

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  • Positive Terms in Contract
    • Terms v Representations
      • Objective Test
        • "Would a reasonable person infer that the seller intended the statement to be part of the contract" - Oscar Chess Ltd v Williams [1957]
      • untrue representations may lead to recission, but breach of terms may terminate a contract
      • Implied Terms
        • IT's in Law - certain obligations are implied in law as it would be unreasonable if they weren't/ they are a necessity
          • Liverpool CC v Irwin [1976]
        • IT's in Fact
          • Officious Bystander Test - "The Moorcock [1889]
            • "When something is so obvious if such a provision was suggested to a bystander would say "oh of course""
    • Conditions, Terms and Innominate Terms
      • Conditions are vital terms, a breach of these terms allow termination and damages
      • Warranties are less important terms, they allow damages but not terminate
      • Innominate Terms - hybrids that sometimes allow termination if the breach deprives the party of substantially the whole benefit - Hong Kong Fir Shipping [1962]
      • Parties can label terms as they wish, but the courts will not always accept these terms - L. Schuler [1973]
    • Time Clauses will sometimes be designated as Conditions - Bunge Corp. [1981]


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