Terms of the Contract

Terms of the Contract - Terms of the Contract (Mugger...

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Terms of the Contract (Mugger Notes) 1. Express Terms Terms which are explicitly stated in the contract. Normally both parties dispute the implicit terms. An express statement could be: Puff: no legal effect. Representation: non promissory statements. Term: binding promissory statements. o Why distinguish between representation and term? Affects available cause of action o When term has not been complied with, the court will ask the defendant to compensate you. I.e Future earnings When it is a term, the court will compensate you for your expectation. o When it is not a term, the court may just bring you backward to where you were. I.e Return you to where you were before the contract. Representation or term? Ultimately an objective test of the parties’ intent o Did both parties intend to be bound to fulfill this statement? Anybody wishing to buy this book for $10? You are bound to pass with flying colours if you use it. o Unlikely party intended to be bound. Puff? It says it is the fifth edition of McKendrick o Unlikely party intended to be bound because party said “it says.” I.e Book claims itself to be. Representation As far as I know, nobody has ever used it o Disqualified by party’s knowledge It is in brand new condition; and I guarantee that no page is missing o Term How to decide? Did the maker of the statement intend to be bound? Did he guarantee the accuracy of the statement? o Factors Importance? Reduced to writing? L’Estrange v. F. Graucob Ltd. Lady signed a contract for a purchase of a cigarette vending machine. Lady just simply signed the contract. The contract excluded all express and implied terms. Court held that it was just too bad. The objective person who would have witnessed it would say that signing a contract with such explicit terms would mean the plaintiff intended to be bound. Unusual Terms: Interfoto Picture Library Ltd. v. Stiletto Visual Programmes Ltd. Defendant borrowed slides, failed to return, overdue. Overdue charge was 5 pounds instead of the normal 3 1
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pounds. Lord Denning ruled that the term was so unusual that it should have been highlighted. Non est factum meaning: o It is not my deed (illiterate people): Saunders v. Anglia Building Society. Lapse of time? Statement of opinion? Special knowledge? Oscar Chess Ltd v. Williams Dick Bentley v. Harold Smith I.e Car dealer (because he is expert, more likely to believe him that’s why more likely to be a term) Contra Proferentum rule You drafted the document so court rules that if term could be good for you or bad for you, the court automatically enforces the meaning of the term that is bad for you.
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This note was uploaded on 02/07/2012 for the course LGST 101 taught by Professor Hsu during the Spring '11 term at Singapore Management.

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Terms of the Contract - Terms of the Contract (Mugger...

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