Thread: Terms of Contracts Revision

A. Pre-contract Statements that are expressly stated -

Are they terms or representations?

TERMS?
Factors that shall be considered by the courts
1. Have they been reduced to writing
2. Contract was signed but un-read
3. Party knew the importance of statement
4. The parties realtive knowledge and skill
5. The time in which the statement was made.

Once it was accepted that they were contractual terms, they must be classified into
1. Condition
2. Warranty
3. Indominate terms
since a breach of each will offer different remedies

B. Terms not expressed but could they be implied into a contract, a breach of which attracts remedies
1. Implied by Common Law?
2. Implied by facts (of course)?
3. Implied by Statute?
4. Implied by customary practice?

C. If not terms, was it mere puff or representation?
A mis-representation, that induced a party into contract and causes an innocent party to suffer a loss, will require the defendant to compensate the innocent party for the loss. See Mis-Representation

4. An Exclusion Clause may or may not be a valid term - See Exclusion Clause for rules governing exclusion clauses.

Are the Exclusion Clause , expressly stated, part of the terms of contracts?

a. MUST BE INCORPORATED

1. Has it been incorporated by notice?
2. Has it been incorporated by signature?
3. Has it been incorporated by way of a ticket?
4. Has it been incorporated by reference to another document?
5. Has it been incorporated by reference to past dealings?

B. Is it valid? or effective?

1. The contra proferendem rule
2. Involves a fundamental term?
3. Controls under UCTA 1977
- Neligence
- Death and injury
- Dealing as consumer
- Implied Terms taht cannot be excluded Sales of Goods, Sales of Goods and Services.
4. Controls under UTCCR 1999
- Standard terms
- Good faith
5. Was there mis-representation of the exclusion clause to render it ineffective?

note: There are no implied exclusion clauses