Terms and exclusion clause cases
Lec 10&11
Contractual terms: contracts consist of various obligations, statements, promises and
stipulations. Can be expressed or implied.
Express: specifically agreed by parties. Written documents.
Implied: not specifically agreed b y parties but implied, nevertheless. Statutory rights
inserted. Give business efficiency.
Classification of terms:
CONDITIONS-
Term that goes to the root of a contract. Breach brings end to contract and damages
can be claimed. (Poussard v Spiers)
WARRANTIES-
Contract can withstand breach of warranty. Only damages awarded if breached.
(Bettini v Gye)
Distinction of term depends on intention of parties description of a term is important
(Schuler v Wickman)
INNOMINATE TERMS-
Consequence of breach determines status. If major then is condition, if minor is
warranty. (Hong Kong Fir v Kawasaki Kisen Kaisha)
Implied terms:
By statute:
Title- s12 sale of goods act
Description- s23 SGA
Fitness for purpose and satisfactory quality- s14 SGA
Sale by sample- s15 SGA
Exclusion clauses:
Common law restricting liability or excluding it from party who is in breach
Exclusion clause or limitation clause
RULE:
1. Clause must be incorporated into contract and
2. As a matter of construction, it extends to loss in question
INCORPORATION- signature, notice or previous dealings
SIGNATURE
Signature is evidence of consent to terms even if it hadn’t been read (L’estrange v
Graucob)
Ticketed headed receipt was misrepresented and d couldn’t rely on clause (Curtis v
chemical cleaning and dyeing co)
NOTICE
Reasonable notice with reasonable steps that must be taken to draw attention to
existence of clause (Parker v South-eastern RWY)
Document must be one which is reasonable to expect to contain terms and
conditions. Ticket was held to be an unreasonable document. Must be a document
Lec 10&11
Contractual terms: contracts consist of various obligations, statements, promises and
stipulations. Can be expressed or implied.
Express: specifically agreed by parties. Written documents.
Implied: not specifically agreed b y parties but implied, nevertheless. Statutory rights
inserted. Give business efficiency.
Classification of terms:
CONDITIONS-
Term that goes to the root of a contract. Breach brings end to contract and damages
can be claimed. (Poussard v Spiers)
WARRANTIES-
Contract can withstand breach of warranty. Only damages awarded if breached.
(Bettini v Gye)
Distinction of term depends on intention of parties description of a term is important
(Schuler v Wickman)
INNOMINATE TERMS-
Consequence of breach determines status. If major then is condition, if minor is
warranty. (Hong Kong Fir v Kawasaki Kisen Kaisha)
Implied terms:
By statute:
Title- s12 sale of goods act
Description- s23 SGA
Fitness for purpose and satisfactory quality- s14 SGA
Sale by sample- s15 SGA
Exclusion clauses:
Common law restricting liability or excluding it from party who is in breach
Exclusion clause or limitation clause
RULE:
1. Clause must be incorporated into contract and
2. As a matter of construction, it extends to loss in question
INCORPORATION- signature, notice or previous dealings
SIGNATURE
Signature is evidence of consent to terms even if it hadn’t been read (L’estrange v
Graucob)
Ticketed headed receipt was misrepresented and d couldn’t rely on clause (Curtis v
chemical cleaning and dyeing co)
NOTICE
Reasonable notice with reasonable steps that must be taken to draw attention to
existence of clause (Parker v South-eastern RWY)
Document must be one which is reasonable to expect to contain terms and
conditions. Ticket was held to be an unreasonable document. Must be a document
