WEEK 6 – TERMS
What is the difference between express and implied terms?
o An express contract is a term that is directly acknowledged and stated by
both parties. They consist of the direct promises made by either party to the
other, and they are binding. Express contracts can be WRITTEN OR
VERBAL. ... Unconditional acceptance of an offer is necessary for a
contract to become legally binding.
o Implied terms are words or provisions that a court assumes were intended to
be included in a contract. This means that the terms aren’t expressly stated in
the contract. In a business contract, it’s usually not possible to cover every
detail. A court will often assume that some contract terms are implied.
o The rights and duties of both employers and employees are found in the
contract of employment. They are called ‘terms’ of the contract.
The law states that certain express terms must be put in writing and
handed to the employee in the form of a written statement of particulars
within one month of starting work.
Occasionally, the courts will imply a term in a contract of employment where
an important term has been left out.
Implied terms include statutory rights, such as the right to equal pay and
duties, such as a duty of care. An important implied term is the duty of mutual
trust and confidence, which is implied in every employment contract.
What is the effect of signing a contractual document? Should clicking a box on a
website, saying that you have read and you agree to another party’s terms and
conditions, be treated in the same way?
o A signature has the legal effect of signifying that a party has read, understood
and assents to the contract. A party who has signed a contract will be bound
by its terms regardless of whether it read it or not.
o There are exceptions e.g. if you are forced to sign the contract, or under the
Unfair Contract Terms Act 1977.
o No authority in this scenario, but it can be argued that if your autonomous and
click the box then you are bound.
o Applying the Red Hand Rule.
Where there is no signature, how does the law determine what terms have been
incorporated into a contract? What is the ‘red hand’ rule?
o There is a general principle that the more unusual a clause, the more
attention should be drawn to it. Just including the clause in a set of website-
based terms and conditions without highlighting it is not sufficient.
o Incorporation through notice:
Bring to attention of the party, before the moment of conclusion. I.e.
notice needs to be given before or during point of agreement. E.g.
Marlboro case, and Thornton v Shoelane Parking, Chappleton v Berry,
Interphoto v Stiletto.
What is the difference between express and implied terms?
o An express contract is a term that is directly acknowledged and stated by
both parties. They consist of the direct promises made by either party to the
other, and they are binding. Express contracts can be WRITTEN OR
VERBAL. ... Unconditional acceptance of an offer is necessary for a
contract to become legally binding.
o Implied terms are words or provisions that a court assumes were intended to
be included in a contract. This means that the terms aren’t expressly stated in
the contract. In a business contract, it’s usually not possible to cover every
detail. A court will often assume that some contract terms are implied.
o The rights and duties of both employers and employees are found in the
contract of employment. They are called ‘terms’ of the contract.
The law states that certain express terms must be put in writing and
handed to the employee in the form of a written statement of particulars
within one month of starting work.
Occasionally, the courts will imply a term in a contract of employment where
an important term has been left out.
Implied terms include statutory rights, such as the right to equal pay and
duties, such as a duty of care. An important implied term is the duty of mutual
trust and confidence, which is implied in every employment contract.
What is the effect of signing a contractual document? Should clicking a box on a
website, saying that you have read and you agree to another party’s terms and
conditions, be treated in the same way?
o A signature has the legal effect of signifying that a party has read, understood
and assents to the contract. A party who has signed a contract will be bound
by its terms regardless of whether it read it or not.
o There are exceptions e.g. if you are forced to sign the contract, or under the
Unfair Contract Terms Act 1977.
o No authority in this scenario, but it can be argued that if your autonomous and
click the box then you are bound.
o Applying the Red Hand Rule.
Where there is no signature, how does the law determine what terms have been
incorporated into a contract? What is the ‘red hand’ rule?
o There is a general principle that the more unusual a clause, the more
attention should be drawn to it. Just including the clause in a set of website-
based terms and conditions without highlighting it is not sufficient.
o Incorporation through notice:
Bring to attention of the party, before the moment of conclusion. I.e.
notice needs to be given before or during point of agreement. E.g.
Marlboro case, and Thornton v Shoelane Parking, Chappleton v Berry,
Interphoto v Stiletto.
