0405 term1 (with comments)

0405 term1 (with comments) - Part 1(a LL has most...

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Part 1 (a) LL has most definitely a contract with BB. This is because as a customer of BB, she has to pay a fee for depositing her belongings to be safe-kept in BB, that fee would serve as a detriment. In return she would enjoy a benefit which is the services of BB, that being BB’s detriment. As in Currie v Misa (1875), ‘a valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other’. We can thus see that there are considerations by both parties, and thus we can say that a contract has been formed between them. In this contract, there are probably many terms, the most important of which is probably that BB will safe-guard LL’s personal belongings to the best of its abilities in return for a fee. This term that BB will safe-guard LL’s deposit should be a condition as stated in the written contract. Should this term that BB must safe-guard LL belongings not be included in writing in the contract, we can argue that it will otherwise be an implied term. This can be done using both the business efficacy test, and the officious bystander test. Under the business efficacy test, the term will be an implied term in the contract if it is necessary for the forming of the contract. Why else would people pay a bank to store their belongings in there, if it wasn’t for the fact that the bank would safe-guard those belongings? Therefore it is reasonable to say this term is necessary for the contract for the contract would not be effective without it. Alternatively, we could use the officious bystander test. If both parties have been asked at the time of forming the contract if the bank would safe-guard LL’s belongings, undoubtedly, both LL and BB would have agreed. Not only is this term part of the contract between LL and BB, it is a condition. That is to say that a breach of it would deprive LL the whole of the benefit of the contract. This is the case here as the primary intention of LL by depositing her items with BB is for safe- keeping. The absence of this term would have persuaded LL not to enter into the contract in the first place.
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