Unformatted text preview: Contract Terms Not, terms made a long time before the contract is formed Not, terms made after the contract is formed The test: when was the statement made to the other party? Contract Terms Written / oral (normally written terms prevail over oral terms) Express terms Implied terms Contract Terms Did the party accept the written contract because of an oral promise? If no, the written terms will prevail. If yes, does the written contract state that its terms are final? If yes, the written terms will prevail. If no, the oral promise will prevail. What are conditions? Implied terms under the SOGO Implied terms under the Supply of Services (Implied Terms) Ordinance Other important terms Remedies for breach of conditions Damages (how much $ did the victim lose because of the breach of the conditions?), + Rescission (refund of the purchase price) (not available for breach of warranties) Remedies for breach of innominate terms Damages (how much $ did the victim lose because of the breach of the innominate terms?), + Rescission (refund of the purchase price) (not available in case no serious consequence is caused by the breach of the innominate terms) Effectiveness of exemption clauses Contract terms? If not, no contract law action based on them. Has the innocent party signed any document with an exemption clause? If yes, has there been misrepresentation made as to it? Effectiveness of exemption clauses When was the exemption clause made known to the innocent party? Has it been made known to the innocent party in a reasonable manner? Has there been a consistent course of dealings between the parties so that it can be proved that the innocent party should have noticed it? Effectiveness of exemption clauses Physical injuries caused by negligence? Loss due to defective hired consumer goods? Not effective in the above cases. Effectiveness of exemption clauses Exclusion of liability for breach of implied terms under SOGO (e.g. good quality in the goods) / supply of service law (e.g. care and skill in supplying the service)? Not valid if consumers are involved. Valid if reasonable in case nonconsumers are involved. Effectiveness of exemption clauses Is the following person a consumer under the SOGO? Example 1: a restaurant owner buys an airconditioner for enjoyment by its patrons while they eat Example 2: a restaurant owner buys food for serving his patrons Effectiveness of exemption clauses Does the supply of service law apply in the following cases? Example 1: a bank accepting things for its custody in its vouch in consideration of an annual rental fee Example 2: a person asking for the staff member of the hair salon to store his clothes whilst he had hair cutting there Effectiveness of exemption clauses Most other cases is the exemption clause reasonable? If so, it is valid. Relevant factors: Knowledge? Language ability? Equal bargaining power? Insurance cover? Inducement of consumers? Other sources of supply? A balancing exercise Interpretation of valid exemption clauses Are their wordings clear enough to exempt the liability incurred in the case in question? If not, the exemption clause is ineffective to exempt the relevant liability. Effectiveness of disclaimers Physical injuries caused by negligence? Not effective in the above case. Exclusion of liability for loss caused by negligence where there is no contract between the parties? Valid if reasonable (the supply of service law does not apply in this case). ...
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- Spring '11
- Contractual term, Exemption Clauses