cheat sheet.pdf - Tutorial 5 Terms of a contract Tuesday 30 March 2010 10:39 AM Step 1 State term breached Step 2:Identify whether there is a breach

cheat sheet.pdf - Tutorial 5 Terms of a contract Tuesday 30...

This preview shows page 1 - 2 out of 18 pages.

Step 1: State term breachedExpressed termMust be introduced or referred to before or at the time the contract is madeTerms made after are generally nit binding unless they are a lawful variation [tutorial 4]Exceptions : Liquidated Damages Clause [ tutorial 8]Does not matter whether terms are fair or reasonable, unless they are invalid due to some statutory provision or against public policyHeld that Swissport was liable as the court agreed that the clause in question covered the situation where authorities took the initiative to revoke or cancel the license.Tiger Airways Pte Ltd v Swissport Singapore Pte Ltd (2009)[page 56]Terms has to be interpreted according to the context in which it apearsBusiness should go through contractual terms to see if they really protect their interest even if lawyers draft for themTerms not written properly may have problems with interpretationHeld that Oral evidence cannot be admitted to vary or contradict the express terms of a contractHawrish v Bank of Montreal (1969)Oral evidence cannot be admitted to vary or contradict the express terms of a contractHeld that the oral statement made by the sales representative is to override the express term in the contract as there was misrepresentation.Exklusiv Auto Services Pte Ltd v Chan Yong Chua Eric (1996) [Page 57]If misrepresentation / fraud / mistake etc occursEXCEPTIONS:Parol Evidence RuleTerm expressed in contractImplied TermsTerms can be implied by custom, statue or courts.Eg Cheque more than 6 months old will not be honouredIf the contract takes place in a particular trade or industry where there is long standing, well-established and reasonable custom in that trade or industry, that custom may be implied into the contractCustomSale of Goods Act, section 13,14,14(2) and 15 [ tutorial 9]Examples:StatuteBased on the presumed intention of the partiesFact1.Forefront Medical Technology (Pte) Ltd v Modern - Pak Pte Ltd (2006)held that both tests have to be satisfied [page 60]Shirlaw v Southern Foundaries Ltd (1939)states that if an official bystander were to suggest some express provision for their agreement, they would testily suppress him with a common : " Oh, of course" [ page 59]Test 1: Official bystander testThe Moorcock(1889)states that the law raises an implication from the presumed intention of both parties, with the object of giving to the transaction such efficacy as both parties must have intended that at all events it should have [ page 59]Test 2: Business efficacy testOnce a term has been implied, it sets a precedent for all future cases of that particular typeWhether terms will be implied is a question of public policyForefront Medical Technology (Pte) Ltd v Modern - Pak Pte Ltd (2006) provides that the courts will be more careful to imply terms on this basis [page 60]NOTE: Courts will not imply a term that contradicts an express term in the contractLaw 2.
Background image
Image of page 2

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture