3010411
| Question | Answer |
| What is the difference between a term and representation? | A term forms part of the contract and set out the rights and duties of the parties. Representations are statements inducing a contract and non-compliance results in misrepresentation for which the remedy may be different. |
| What are the factors distinguishing terms from a representation? | -Verification: Schawel v Reade (1913) -Importance of a statement- Couchman v Hill [1947] -Special Knowledge/Skill-Oscar Chess Ltd v Williams [1957] Timing- Routledge v McKay -Reduction of oral agreements to writing- Routledge v Mckay |
| What's the difference between implied and express terms? | Implied: Automatically inserted into the contract without having been expressly stated by the parties. E.g. Custom & trade usage, Previous Dealings,Statute and The courts Expressed: Specifically mentioned and agreed by the parties orally |
| What are the 3 types of terms? | 1) Condition 2) Warranty 3) Innominate |
| What is a condition? | It is a term at the 'root of the contract' and if breached can repudiate the contract and/or sue for damages- Poussard v Spiers (1876) |
| What is warranty? | It is a less important than condition and doesn't go to the 'root of the contract'. If breached they only give rise to damages- Bettini v Gye (1876) |
| What is an innominate term? | These terms cannot be classified as either conditions or warranties from the contract. If breached it depends on the seriousness of the consequences of breach - Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd [1962] |
| How are the status of the terms decided? | The status of the term depends on the intention of the parties Status may be expressly stated and this will normally be conclusive- Rice v Great Yarmouth BC [2003] TCLR 1 If there is no express provision the courts decide |
| What are vitiating factors? | Even where all the contractual elements may be present, there may factors that mean there is no genuine consent |
| What are the five vitiating factors and what do they do to the contract? | Misrepresentation, Mistake, Duress, Undue influence and Illegality They usually make a contract void or voidable |
| What are the requirements for Duress? | 1. Pressure exerted on the contracting party 2. Illegitimate Pressure 3. Pressure induces the contract 4. Claimant had no real choice 5. Claimant protested at the time of the contract or shortly afterwards |
| Definition of Duress? | A common law doctrine which makes contracts induced by unlawful pressure voidable |
| Remedies for Duress? | Duress makes the contract voidable & the main remedy is rescission but there are bars to rescission |
| What are the types of duress? | There are 2 types Physical and Economic |
| Definition of Undue Influence | It applies where 1 party uses their influence over another to make them enter into a contract by improper pressure is applied |
| What are the two types of undue influence? | Actual Undue Influence(No special relationship) (Class 1) Presumed Undue Influence (Special relationship) (Class 2) |
| What is actual undue influence? | The claimant can prove the actual influence of the other party – like duress but insufficient for duress ie. specific overt acts of persuasion eg. A promise to pay money after a threat to report a criminal offence Williams v Bayley (1866 |
| What is presumed undue influence? | Where there is such a relationship Undue Influence is presumed and it is for the wrongdoer to prove there is none – the burden of proof is reversed Such a reversal occurs when the transaction requires an explanation |
| What case created the 2 sub-classes of presumed undue influence and what are they? | Since Barclays Bank v O’Brien [1993] there were 2 sub-classes Presumed Special Relationship – Class 2A Proved Special Relationship – Class 2B |
| What relations come under presumed or established undue influence? | Parent/child – Lancashire Loans Co v Black [1933] Religious adviser/disciple – Allcard v Skinner (1887) Trustee/beneficiary Guardian/Ward Solicitor Client/Doctor/patient |
| What relations come under proved special relations? | Husband/Wife, other cohabitees & Bank/Customer in certain circumstances National Westminster Bank v Morgan [1985] Barclays Bank v O’Brien [1993] BCCI v Aboody [1990] |
| What is the remedy for undue influence? | Undue influence makes a contract voidable and note the possible effect on subsequent contracts – Yorkshire Bank plc v Tinsley [2004] |
| What is illegality? | The creation of the contract itself may be unlawful or it may be its performance that is unlawful |
| What are the four main groups? | o Contracts void by statute o Contracts illegal by statute o Contracts void at common law o Contracts Illegal at common law as contrary to public policy |
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