Terms and Representations of Contract - Incorporation of terms (1)

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  • Terms and Represen-tations; Incorporation of terms. (1)
    • Terms and Represen-tations.
      • Terms
        • Form part of a contract
        • Binding on parties
      • Representations
        • Do not form part of contract
        • Not binding on parties
    • Heilbut, Symons & Co v Buckleton [1913] AC 30
      • "An affirmation at the time of the sale is a [contractual promise], provided it appears on evidence to be so intended"
      • No one single factor to determine intention: questions are raised alongside these factors.
        • Timing
          • How close was the representation to the time when the contract was finalised?
        • Expertise
          • Was there a disparity in knowledge and skill?
        • Reliance
          • Did one party rely on the other?
        • Importance of the issue
          • within the contract?
    • Inntrepreneur Pub Co v East Crown Ltd (2000)
      • An "important consideration will be whether the statement is followed by further negotiations and a written contract not containing any term corresponding to the statement....
        • ...In such a case, it will be harder to infer that the statement was intended to have a contractual effect, because...
          • ...the prima facie assumption will be that the written contract includes all the terms the parties wanted to be binding between them." (Per Lightman J)
    • Oscar Chess Ltd v Williams [1957] 1 WLR 370
      • "it must have been obvious to both that the seller had himself no personal knowledge of the year when the car was made...
        • ...he must have been relying on the registration book...
          • ...In these circumstances the intelligent bystander would, I suggest, say that the seller did not intend to bind himself so as to warrant that the car was a 1948 model...
            • ...If the seller was asked to pledge himself to it, he would at once have said 'I cannot do that. I have only the log-book to go by, the same as you."
    • **** Bentley Production Ltd v Harold Smith (Motors) Ltd [1965] 1 WLR 623
      • "[I]t seems to me that if a representation is made in the course of dealings for a contract fro the very purpose of inducing the other party to act on it...
        • ...and it actually induces him to act on it by entering into the contract, that is prima facie ground for inferring that the representation was intended as a warranty [i.e. a contractual promise]".


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