Chen-Wishart Ch 12 - 12.2.2.2
Express Terms + Implied Terms = Contents
Two Questions
- Are all terms of equal importance
- You have broken a term of our contract - can i now terminate the whole contract?
Two approaches to the question of what kind of term it is;
Importance of the Term
Importance of the Breach
‘This has resulted in the distinction between conditions, warranties, and innominate terms’
- Sir Jack BeatsonFBA, ANdrew Burrows FBA, QC (Hon) and John Cartwright; Anson’s law of contract (30th Edn,
OUP 2016) 148
Three Shapes to terms
- Square; Condition
- Triangle; innominate
- Circle; Warranty
Conditions and Warranties
Breach of condition = termination and damages
Breach of warranty = Damages Only
But…
Bettini v Gye - Attend Rehearsals 6 days before start - breach did not entitle termination - Warranty?
Poussard v Spiers and Pond - absence for the first performance did entitle termination - Condition?
‘Bettini was considered by the (academic Contract)writers to have committed a breach of warranty and poussard a
breach of condition. In neither case, however, did the court scrutinise the contract at the time it was made and identify
a term as a condition or warranty. It looked at the effect of the failure to perform..’
Two approaches to the question of what kind of term it is;
Importance of the term;
‘ one approach (which we got from) reflected the sale of goods act 1979, is to classify the term at the time the contract
is made as either a condition or a warranty’ (Anson, 148)
Square; if the parties regarded the term as essential, it is classified as a condition
Circle; if the parties did not regard the term as essential, but as subsidiary or collateral, it is classified as a warranty
Importance of the Breach
Another approach, often seen as more modern, but in facts with older roots, rejects the proposition that every term of a
contract can be classified as either a condition or a warranty (Anson 149)
Triangle; a third category… innominate (or intermediate) terms
The legal consequences of the breach of such a term (ie whether or not the innocent party is entitles to treat itself as
discharged) do not follow automatically from a prior classification of the undertaking but depend upon the nature and
consequences of the breach
Prof. McKendrick
Express Terms + Implied Terms = Contents
Two Questions
- Are all terms of equal importance
- You have broken a term of our contract - can i now terminate the whole contract?
Two approaches to the question of what kind of term it is;
Importance of the Term
Importance of the Breach
‘This has resulted in the distinction between conditions, warranties, and innominate terms’
- Sir Jack BeatsonFBA, ANdrew Burrows FBA, QC (Hon) and John Cartwright; Anson’s law of contract (30th Edn,
OUP 2016) 148
Three Shapes to terms
- Square; Condition
- Triangle; innominate
- Circle; Warranty
Conditions and Warranties
Breach of condition = termination and damages
Breach of warranty = Damages Only
But…
Bettini v Gye - Attend Rehearsals 6 days before start - breach did not entitle termination - Warranty?
Poussard v Spiers and Pond - absence for the first performance did entitle termination - Condition?
‘Bettini was considered by the (academic Contract)writers to have committed a breach of warranty and poussard a
breach of condition. In neither case, however, did the court scrutinise the contract at the time it was made and identify
a term as a condition or warranty. It looked at the effect of the failure to perform..’
Two approaches to the question of what kind of term it is;
Importance of the term;
‘ one approach (which we got from) reflected the sale of goods act 1979, is to classify the term at the time the contract
is made as either a condition or a warranty’ (Anson, 148)
Square; if the parties regarded the term as essential, it is classified as a condition
Circle; if the parties did not regard the term as essential, but as subsidiary or collateral, it is classified as a warranty
Importance of the Breach
Another approach, often seen as more modern, but in facts with older roots, rejects the proposition that every term of a
contract can be classified as either a condition or a warranty (Anson 149)
Triangle; a third category… innominate (or intermediate) terms
The legal consequences of the breach of such a term (ie whether or not the innocent party is entitles to treat itself as
discharged) do not follow automatically from a prior classification of the undertaking but depend upon the nature and
consequences of the breach
Prof. McKendrick
