IBL Week 3

15 flashcards · Other · by Daniel F.

terms of a contract
Pre-Contractual Statements Trader's Puff: Exaggerated advertising, no legal effect. Representation: Statement inducing a contract, remedies for misrepresentation if false. determine if contract or not: Importance of the statement Time between statement and contract. Oral vs. written statement. Knowledge/skill of the maker. Term: Part of the contract, remedies for breach if broken.
Contractual Terms
Certainty: Terms must be sufficiently clear and complete. Express Terms: Specifically stated by the parties. Implied Terms: Incorporated by statute, courts, or custom. Conditions: Fundamental terms, breach allows termination and/or damages. Warranties: Minor terms, breach allows damages only. Innominate Terms: Categorized based on the severity of the breach.
Exemption clauses in contracts
clauses that seek to limit or exclude a liability that would otherwise exist
what makes an exemption effective
incorporated into the contract (exception: Hollier v Rambler Motors Ltd. (1972)) term to be incorporated through a course of dealing, the dealings must be regular and consistent specific to the liability being excluded comply with UCTA 1977 or the CRA 2015
Incorporating the exemption clause of the contract
Basics It must have 'reasonably' been brought to the other party's attention the more onerous or unusual the clause, the more that needs to be done to bring the clause to the other party's attention Chappelton v Barry UDC (1940) Olley v Marlborough Court Ltd. (1949) Thornton v Shoe Lane Parking (1971) Spurling v Bradshaw (1956) In practise clear and concise language standard terms are presented in a clear and legible format Highlight onerous terms through signposting and visual highlighting pla…
Unfair Contract Terms Act 1977
b2b only Covers contractual and non-contractual exemptions Death/injury exclusions in exemption clauses are void
Consumer Rights Act 2015
b2c unfair term is not binding on a consumer Death/injury exclusions in exemption clauses are void
grounds of discharge of contracts
Agreement: Mutual release, accord and satisfaction. Performance: Complete fulfillment of obligations. Frustration: Unforeseen event making performance impossible/illegal. Breach: Failure to perform contractual obligations.
Discharge by agreement
Parties may agree to end contract before all obligations have been completed Agreement to end contract is actually a second contract between parties Bilateral discharge: both parties release each other from obligations under the contract Unilateral discharge: party wishing to be released must provide consideration: accord and satisfaction
Discharge by performance
Ideal method of discharge is that each party does exactly what they promised to do performance exactly matches agreement Exceptions Substantial performance Where contractual obligation regarded as entire requirement, party may be entitled to payment for work they have carried out if they have almost completed whole contractual obligation Divisible contracts Some contracts divisible into parts and payments becomes due at various stages of performance Prevention of completion by the other party P…
Discharge through frustration
events occur that make the performance of the contract impossible illegal something radically different from that originally envisioned Event must occur after contract has been entered into but before it has been completed has to be completely unforseen and not self-induced more expensive =/= frustrared Frustrating events: Taylor v Caldwell Gamerco v ICM/ Fair Warning Re Shipton Krell v Henry Heme, Bay Steam Boat Co v Hutton Fibrosa v Fairbairn Condor v Baron Knights Consequences of a contract…
Discharge by breach
anticipatory breach party states, prior to performances, they will not fulfill their contractual obligations () actual breach Breach of conditions: party fails to complete their contractual obligations or performs their contractual obligations in a defective manner. Breach of warranties: Minor terms of contract incidental to main purpose, Party can claim damages but must continue with contract Breach of innominate terms: Injured party entitled to damages and if deprived of substantially whole b…
Remedies for Breach
Damages: Monetary compensation to restore innocent party. Action for Agreed Contract Price: Claim for unpaid price after party does the complete performance Quantum Meruit: "As much as he has earned," for partially completed work. Specific Performance: Court order to perform obligations, if damages are not enough, e.g. land, rare artwork Injunction: Court order to prevent breach. Repudiation: The innocent party's right to treat the contract as terminated due to the other party's breach Restitut…
damages
Purpose: Compensation, not punishment. Remoteness: Losses must be foreseeable and a natural consequence of the breach. Measure: Actual financial loss, assessed according to market rules. Duty to Mitigate: Innocent party must take reasonable steps to minimize losses.
CISG
Aim Harmonization: To create a uniform legal framework for international sales, reducing legal uncertainty and transaction costs. Promotion of Trade: By providing clear rules, the CISG aims to facilitate international trade and make it more predictable. Neutrality: The CISG avoids favoring buyers or sellers from any particular legal system, promoting fairness Convention on Contracts for the International Sale of Goods multilateral Convention entered into force on 1 Jan 1988 up on ratification b…