...which the terms of a contract can be classified according to their origin, and also according to the type of breach and evaluate the legal significance of the different type of terms and their impact upon the contract. Terms are the contents of the contract which determines the parties’ rights and obligations. The purpose of a contract is to establish the agreement that the parties have made and to fix their rights and duties in accordance with that agreement. The significance of a contract are known as terms or clauses. In general an agreement is based on various terms and even the simplest form of contract will have terms. The terms are not written in simple contract, although writing is required in certain type of contracts such as contracts for the sale of land, mortgages and consumer credit agreement. Contract terms may be express or implied and they may be classed as either conditions, warranties or innominate terms. A condition is a vital term of the contract. A breach of a condition allows the party who is not in breach of contract either to terminate performance of the contract and obtain damages for any loss suffered as a result of breach. A warranty is a minor term of a contract which is not central to the existence of the contract. A breach of a warranty only enables the innocent party to claim damages. A warranty is a term which refers to the subject matter of the contract but not warranty to the main purpose of the contract. Unlike a condition term, a breach...
Words: 519 - Pages: 3
...Terms and Exemption Clauses 1) Parol Evidence 2) Terms and Representation 3) Implied Terms a) In Fact b) In Law c) In Statute d) By Custom 4) Classification of Terms 5) Exemption Clauses: Incorporation a) By Signature b) By Notice c) By Previous Course of Dealing 6) Construction a) Contra Proferentem Rule b) Rule in Cases of Negligence Liability c) Doctrine of Fundamental Breach 7) Unfair Contract Terms Act (UCTA) a) Liability in Negligence b) Liability in Contract c) Sale and Supply of Goods d) Test of Reasonableness Parol Evidence Rule a) No extrinsic evidence (such as any oral agreement or statement) is admissible to add to, vary or contradict a written instrument or contract. b) Exceptions c) Contract was the result of mistake, a lack of consideration, or of misrepresentation d) Mistake in the written contract i) Joscelyne v Nissen (1970) e) Contract has not yet come into existence or that it is no longer in operation i) Maybe due to the occurrence or non-occurrence of a certain event by a certain date, which has been accepted verbally ii) Pym v Campbell (1856) iii) Obligation to buy shares in an invention was conditional upon a 3rd party approving the invention, of which the approval had not been received. f) Where extrinsic evidence demonstrates that a particular custom of trade must be implied to, and therefore become a part of, the written agreement...
Words: 6952 - Pages: 28
...LAW204 - CONTRACTS Week 5 – Express Terms ___________ ** N.B. The main cases covered in lectures, containing MAIN RULES are highlighted in YELLOW! READINGS/LECTURE CHAPTER 10 – EXPRESS TERMS Introduction – Contents of a Contract? * Express Terms: contain contractual promise and terms that are capable of being Incorporation by pre-contractual statement: * Courts look at what the parties said * Have these statements become express terms? Statements the court acknowledges: * Irrelevant statements and Puffs: * Sales talk, exaggerations e.g. best on the market! * No reasonable person is supposed to take it seriously * No affect on contract, not actionable * Representations: * Factual statements which are intended to and do induce the representee to enter the contract not made to be binding * Merely representational/description with no promissory intent – truth not guaranteed by their marker * LACK ANY CONTRACTUAL FORCE * False representations may constitute a misrepresentation innocent party may be able to rescind the contract, or attract remedies under statue (misleading and deceptive conduct) * Legal action is limited to actions in negligence or fraud (deliberately lied to you) or misleading or deceptive conduct under s18 of Australian Consumer Law * Terms: * Contractual undertakings intended to be binding – not merely representational ...
Words: 6658 - Pages: 27
...to the incorporation of terms of these contracts. With such ambiguity within the ETA , this can create problems for parties entering into a contract of an electronic nature. This problem extends further to the judicial system, with no clear legislative materials to facilitate courts in the interpretation of how terms are to be incorporated into a contract. Two common methods of contract term incorporation will be discussed further in both an electronic and non-electronic context. These are incorporation of terms by signature; and incorporation of terms by notice. Incorporation of terms by signature Contracts that require a signature for validity will, under common law (for at least traditional written contracts), assume that the signing party has read and agreed to all terms that are stated within the contract, regardless of whether the parties have in fact read the contract terms. This reasoning was established in the English case of L'Estrange v Graucob The High Court of Australia accepted L’Estrange v Graucob (L’Estrange) as good law in Australia in the case of Toll (FGCT) Pty Limited v Alphapharm Pty Limited (Toll). Macdonald argues that if signatures were to be recognised as sufficient in the incorporation contract terms for online contracts, Toll and L’Estrange, would be recognised as the applicable law for these online contracts, despite the clear distinguishing features between traditional contracts and online contracts. McCullagh, Little...
Words: 1898 - Pages: 8
...Billings on Construction XXX To record collections: Cash XXX Accounts Receivable XXX To Record Revenue, GP, Completion, and expense: To Recognize Revenue and GP (dr.) Construction in Process (GP) XXXX Construction Expenses XXXX (cr.) Revenue – LT Contracts XXXXX Record Completion of Contract: (dr.) Billings on Construction in Progress (FULL BILLING AMT) (cr) Construction in Process (FULL CIP AMOUNT) Balance Sheet Reporting: CIP & Rec. Profit > Billings = Current Asset Billings > CIP & Rec. Profit = Current Liability ------------------------------------------------- Completed Contract Method Billings on Construction in Process XXXXXX Revenue – LT Contracts XXXXX Costs of Construction XXXXXX Construction in Process XXXXXX ------------------------------------------------- Losses on LT Contracts 1. Loss in current period – contract still profitable JE: (dr.) Consruction Expenses XXXXXX (cr.) Construction in Process (loss) XXXX (cr.) Revenue – LT contracts XXXX 2. Loss on an Unprofitable Contract – always recognize loss immediately. JE: (dr.) Consruction Expenses XXXXXX (cr.) Construction in...
Words: 277 - Pages: 2
...Contracts 613 MIDTERM EXAMINATION Contracts 613 Issue: Valid Contract Betty v. Art Formation For there to be a contract, there must be an offer, acceptance and consideration. Offer An offer the present outward manifestation of intent to be bound by contractual agreement requiring definite and certain terms and is communicated to the offeree. When Betty asked Art on what terms he would build a barn on her property was a present outward manifestation. Here Art responded that he had never built a barn for hire, he would charge $100 per square foot about $10 more than expected cost was intent to be bound by contractual agreement. When Art told Betty that he could build a 50 x 50 barn Betty said, "OK, if you guarantee January 1, 2005 completion” by her own words that she wanted to be bound by contractual agreement, Art agreed to the contract. Hence, it would be deemed that this present outward manifestation, because in the parties own words indicates their intent to be bound by contractual agreement for the build of Betty barn. Art will counter that their agreement was nothing more than a preliminary negotiations because the price increase there was a new agreement Betty’s initial inquiry was for $100 per square due to the increase in lumber he had to increase the price by $30 per square feet. Further, he had contracted to sale his farm and would not be able to build the barn. However, since one barn would build (quantity), 50’ by 50’ (size), to be ...
Words: 2868 - Pages: 12
...SML770 Make or Sub-contract Problem SML770 Financial Management Term Project M/s Good Machining Co. Make or Sub-contract Dated: 21st April 2008 Team Members: Name Arvind Kundalia Rahul Jain Sanjeev Thukral Entry No. 2007SMN7096 2007SMN7088 2007SMN7050 Mobile Phone 9910900355 9818031983 9818151991 Email ar_kundalia@yahoo.co.in Rahuljain_k@yahoo.com Sanjeev.thukral@xansa.com Project Mentor: Prof. P.K. Jain Page 1 of 4 SML770 Make or Sub-contract Problem Problem Statement M/s Good Machining Co. New Delhi, manufactures almost 15 different components for industrial equipments with a sales turnover of over Rs. 1 Crore per annum. Recent recessionary trends in the industry had adversely affected the volume of business and profitability of the Company. A major portion of their business is in supplying machined parts to equipment manufacturers. Good Machining had no foundry of its own but bought casting from the vendors. The Company employed 60 persons of whom 15 were in the machining department. Even though business was slack due to recession, the management did not want to layoff the skilled labour. The reduction in the volume and profitability had led the management to examine in details the profitability of their products. Two standard parts A & B caused particular concern to the management. The forecasted demand for these parts has gone down to only 450 and 220 per month respectively for the coming 1 year. This is substantially lower than normal demand...
Words: 1156 - Pages: 5
...Exclusion And Limiting Clauses INTRODUCTION A clause may be inserted into a contract which aims to exclude or limit one party's liability for breach of contract or negligence. However, the party may only rely on such a clause if (a) it has been incorporated into the contract, and if, (b) as a matter of interpretation, it extends to the loss in question. Its validity will then be tested under (c) the Unfair Contract Terms Act 1977 and (d) the Unfair Terms in Consumer Contracts Regulations 1999. A. INCORPORATION The person wishing to rely on the exclusion clause must show that it formed part of the contract. An exclusion clause can be incorporated in the contract by signature, by notice, or by a course of dealing. 1. SIGNED DOCUMENTS If the plaintiff signs a document having contractual effect containing an exclusion clause, it will automatically form part of the contract, and he is bound by its terms. This is so even if he has not read the document and regardless of whether he understands it or not. See: Struggling with your Law studies? We can help! Have a look at our huge range of products and services that may be useful when planning your next law assignment or essay. Law Essay Writing Service Essay Marking Service Our Guarantees Our quality promise Freelance Writing Jobs Place an Order L'Estrange v Graucob [1934] 2 KB 394. However, even a signed document can be rendered wholly or partly ineffective if the other party has made a misrepresentation as...
Words: 2419 - Pages: 10
...complained of comes strictly within the terms of the clause. If it is in any way ambiguous then it will be interpreted against the party attempting to enforce it this is referred to as the contra proferentem rule. Andrews Bros. v Singer [1934] 1 KB 17 There was a contract to purchase new Singer Cars; the contract contained a clause excluding “guarantees or warranties, statutory or otherwise”. One of the cars delivered to the dealer was a used car. The plaintiff sued Singer (defendants); they tried to rely on the exemption clause. Held – The stipulation as to the suitability of the car was a condition, not a guarantee or a warranty, and as such was not covered by the exemption clause. The term “new singer cars” was an express term. An exclusion of liability in respect of implied terms could not cover liability under the express term. This is particularly so if there is any ambiguity in the term White v John Warwick & Co Ltd [1953] 2 All ER 1021 The plaintiff hired a bicycle from the defendant under a written agreement which included a provision that "nothing in this agreement shall render the owners liable for any personal injuries". The plaintiff was injured when the saddle tilted forward, Held - The Court of Appeal found the defendant liable in negligence. The exclusion clause was sufficient to exclude liability for supplying a defective bicycle, but it was not sufficient to exclude liability for negligence, only liability for implied terms. However it must be stressed that...
Words: 1587 - Pages: 7
...comes strictly within the terms of the clause. If it is in any way ambiguous then it will be interpreted against the party attempting to enforce it this is referred to as the contra proferentem rule. Andrews Bros. v Singer [1934] 1 KB 17 There was a contract to purchase new Singer Cars; the contract contained a clause excluding “guarantees or warranties, statutory or otherwise”. One of the cars delivered to the dealer was a used car. The plaintiff sued Singer (defendants); they tried to rely on the exemption clause. Held – The stipulation as to the suitability of the car was a condition, not a guarantee or a warranty, and as such was not covered by the exemption clause. The term “new singer cars” was an express term. An exclusion of liability in respect of implied terms could not cover liability under the express term. This is particularly so if there is any ambiguity in the term White v John Warwick & Co Ltd [1953] 2 All ER 1021 The plaintiff hired a bicycle from the defendant under a written agreement which included a provision that "nothing in this agreement shall render the owners liable for any personal injuries". The plaintiff was injured when the saddle tilted forward, Held - The Court of Appeal found the defendant liable in negligence. The exclusion clause was sufficient to exclude liability for supplying a defective bicycle, but it was not sufficient to exclude liability for negligence, only liability for implied terms. However it must be stressed...
Words: 1587 - Pages: 7
...However, one day he returned to his car to find that it had been badly damaged by a towing vehicle driven by an employee of Bash Ltd. Whilst on his way to the car park office to complain he was hit by the same towing vehicle, which was clearly being driven dangerously by one of Bash Ltd’s employees. As a result, not only was his car severely damaged, but he suffered a broken leg and was off work for eight weeks. Bash Ltd has accepted that its employee was negligent on both counts but denies any liability, relying on the exclusion clause Required: On the understanding that the clause excluding Bash Ltd’s liability was incorporated into its contract with Andy, advise Andy whether there is any action he can take against Bash Ltd. Given that the question scenario clearly states that the exclusion clause was incorporated into the contract between Andy and Bash Ltd (and there can be no doubt that it is), it is only necessary to consider the effect of the clause. On the basis of the clear wording, it would appear that the wording of the exclusion clause is sufficiently clear and specific to cover Bash Ltd’s negligence. As a consequence, it only remains to consider how the legislation governing exclusion clauses would be likely to deal with this particular clause in the context of the question. The...
Words: 483 - Pages: 2
...Standard Form Contract For Amazon Section 1 - A Breakdown of all terms and conditions 1) ------------------------------------------------- It is very important to have both Conditional terms and warranties in a contract. Find 2 examples of each. Two Conditional terms 1) You may not misuse the Amazon service. You may use the Amazon services only as permitted by law. The licenses granted by Amazon terminate if you do not comply with these Conditions of use or any service terms. In plain English this means: If you don’t abide to the company laws and services, the company has the right to terminate the contract and not serve the specific customer again. 2) You may also not create and/or publish your own database that features substantial parts of any Amazon service (e.g. our prices and product listings) without our express written consent. In plain English this means: you cannot copy the main parts of the amazon service without the company’s permission. For example if you copied the company’s product listings, that is a breach of the condition. Two Warranties 1) Amazon respects the intellectual property of others. If you believe that your intellectual property rights have been used in a way that gives rise to concerns of infringement, please follow our Notice and Procedure for Making Claims of Right Infringements. In plain English this means: this means if you believe that your intellectual property rights have been used you have the right to report this...
Words: 1677 - Pages: 7
...information of a valid contract in the motor industry…………………………………………………………………………….3 1.2 Discuss the impact of different types of contract by providing explanations on comparison with local, export and distance buying modes………………………………………………..7 1.3 Analyze terms in contracts with reference to their meaning and effect in the motor industry………………………………………………………………………………………10 2.1 Apply the elements of contract in both cases business scenarios………………………..12 2.2 & 2.3 Analyze the law of terms in the above two different contract. Evaluate the effect of different terms in the two contracts………………………………………………………….14 Conclusion…………………………………………………………………………………....19 Reference……………………………………………………………………………………..20 Introduction: - The law plays an important role in protecting the fair of the relationship between people vs people as well as transactions in the contract. It contributes to keeping a peaceful country to reach modern and civilization life. In the business environment, the law has always played an important role because the business types are diversity and complex. To business’s activity of enterprises, which obey the law and avoid legal risks in business for sure, you need to be legal advice. In this report, I will act as one consultant in supportingWorld Auto Co in Vietnam, which is one of the famous company in producing motor between Vietnam and Europe markets avoid. 1.1 Explain the importance of the elements required for the information of a valid contract in the motor industry ...
Words: 7291 - Pages: 30
...CLASSIFICATION AND REMEDIES OF TERMS GOH KAH LING* The writer has discussed that contract is a legally enforceable agreement that meets certain specified legal requirements between two or more parties. Terms of contract are statements that made by one party in order to encourage the other party to enter into the contract. It should be clear, promissory and capable of acceptance. Terms of contract can classified as conditions and warranties. Conditions terms are term of major importance which goes to the root of the contract. It entitles innocent party to terminate the contract and sue for damages. Warranties term is a subsidiary term of the contract. It will compensate the innocent party for any loss or inconvenience. It is a hybrid term, sometimes assuming the characteristics of a condition and at other times the characteristic of a warranty. Severity of breach of intermediate terms depends entirely on the legal consequences of the actual situation Breach occurs where a contract has come into being and one or other of the parties fails to perform all or some part of the obligations under it. There are four main remedies available to the wronged party: Specific performance, injunction, damages and restitution. CONTENTS I | Introduction | 2 | II | Terms | 2 | III | Conditions Terms | 3 | IV | Warranties Terms | 4 | V | Intermediate Terms | 5 | VI | Remedies | 7 | | (i) Specific Performance | 7 | | (ii) Injunction | 8 | | (iii) Damages | 8...
Words: 4137 - Pages: 17
... |Unit number and title | |BTEC HND IN BUSINESS | Aspects of Contract and Negligence for Business | | | | |Student name Student ID |Assessor name | |Abu Rahman Hndb 5969 |Nathanial Owusu Frimpong | |Date issued |Completion date |Submitted on | |20-03-2014 |19-03-2014 |21-03-2014 | | | | |Assignment title |Aspects of Contract and Negligence for Business |...
Words: 4339 - Pages: 18
