Contract Law Lecture 8 - LAW1221 - 20/10/2026
Overview
When is identification of terms not a problem?
We do not have to worry about the incorporation of the terms if on the facts:
Everything that possibly could be a term is written up in a contract document, a single one.
A contract is complete by offer and acceptance and the offer sets out every term.
Nothing else was said or written that could conceivably be a term.
But we may still have to worry about interpretation and enforceability of terms.
When is it a problem?
The problem arises with pre-contractual remarks, and whether such can be read as intended to have
contractual effect. Or written notices, usually the text was clearly intended to but it may become an
issue if the other party had sufficient notice of it.
Pre-contractual remarks
Are they a term or not?
The general principle is that remarks are terms if the other party intended them to form part of it,
however the issue arises on the inference of that intention, Helibut : “the parties intended … [it] to
form part of the contract”
If the remark is not a term, it:
might still be an actionable misrepresentation.
might have zero legal effect and be mere expression of opinion like Bisset v Wilkinson or mere puff
and sales talk like Dimmock v Hallett.
Factors affecting whether a comment is a term
Context: Heilbut Symons v Buckleton, brief phone conversation.
Bannerman v White - Claimant made it clear he would not buy product if treated with sulphur, whether
it became a term, court said it was.
Heilbut - Claimant was phoning with no heavy importance on whether company was being set up.
The issue in this case is whether the remarks could be considered a simple representation or a
binding contractual promise.
If remark is reduced in translating to writing, makes it harder to argue the oracy was contract.
Relative knowledge or skill of parties.
In first instance of the case the court held that Heilbut et al made an innocent misrepresentation but
the case went to appeal and it was determined that there was no misrepresentation as they were not
reckless in truths of resource pool and they had given no clear intent for it to be a contractual promise
or to act in parallel to the written agreement.
Comparative knowledge/skill
1
Overview
When is identification of terms not a problem?
We do not have to worry about the incorporation of the terms if on the facts:
Everything that possibly could be a term is written up in a contract document, a single one.
A contract is complete by offer and acceptance and the offer sets out every term.
Nothing else was said or written that could conceivably be a term.
But we may still have to worry about interpretation and enforceability of terms.
When is it a problem?
The problem arises with pre-contractual remarks, and whether such can be read as intended to have
contractual effect. Or written notices, usually the text was clearly intended to but it may become an
issue if the other party had sufficient notice of it.
Pre-contractual remarks
Are they a term or not?
The general principle is that remarks are terms if the other party intended them to form part of it,
however the issue arises on the inference of that intention, Helibut : “the parties intended … [it] to
form part of the contract”
If the remark is not a term, it:
might still be an actionable misrepresentation.
might have zero legal effect and be mere expression of opinion like Bisset v Wilkinson or mere puff
and sales talk like Dimmock v Hallett.
Factors affecting whether a comment is a term
Context: Heilbut Symons v Buckleton, brief phone conversation.
Bannerman v White - Claimant made it clear he would not buy product if treated with sulphur, whether
it became a term, court said it was.
Heilbut - Claimant was phoning with no heavy importance on whether company was being set up.
The issue in this case is whether the remarks could be considered a simple representation or a
binding contractual promise.
If remark is reduced in translating to writing, makes it harder to argue the oracy was contract.
Relative knowledge or skill of parties.
In first instance of the case the court held that Heilbut et al made an innocent misrepresentation but
the case went to appeal and it was determined that there was no misrepresentation as they were not
reckless in truths of resource pool and they had given no clear intent for it to be a contractual promise
or to act in parallel to the written agreement.
Comparative knowledge/skill
1
