Contracts - Express terms
LAW204 - CONTRACTS
Week 5 – Express Terms
___________
** N.B. The main cases covered in lectures, containing MAIN RULES are highlighted in YELLOW!
READINGS/LECTURE
CHAPTER 10 – EXPRESS TERMS
Introduction – Contents of a Contract?
Express Terms: contain contractual promise and terms that are capable of being
Incorporation by pre-contractual statement:
Courts look at what the parties said
Have these statements become express terms? Statements the court acknowledges:
Irrelevant statements and Puffs:
Sales talk, exaggerations e.g. best on the market!
No reasonable person is supposed to take it seriously
No affect on contract, not actionable
Representations:
Factual statements which are intended to and do induce the representee to enter the contract not made to be binding
Merely representational/description with no promissory intent – truth not guaranteed by their marker
LACK ANY CONTRACTUAL FORCE
False representations may constitute a misrepresentation innocent party may be able to rescind the contract, or attract remedies under statue (misleading and deceptive conduct)
Legal action is limited to actions in negligence or fraud (deliberately lied to you) or misleading or deceptive conduct under s18 of Australian Consumer Law
Terms:
Contractual undertakings intended to be binding – not merely representational
Commonly indicate the obligations of parties – promissory intention
Breach of term may give right to termination and damages for breach
Rights emanate from the contract itself because the statement has become a term of the contract and is incorporated as an express term e.g. through ‘warranties’, ‘intermediate terms’, conditions.
Terms and Representations:
In determining whether statements are terms or merely representations, the court in Ellul & Ellul v Oakes (1972) set out a number of factors that can be used to determine this issue:
These factors aren’t conclusive – merely indicators
Courts must decide
Week 5 – Express Terms
___________
** N.B. The main cases covered in lectures, containing MAIN RULES are highlighted in YELLOW!
READINGS/LECTURE
CHAPTER 10 – EXPRESS TERMS
Introduction – Contents of a Contract?
Express Terms: contain contractual promise and terms that are capable of being
Incorporation by pre-contractual statement:
Courts look at what the parties said
Have these statements become express terms? Statements the court acknowledges:
Irrelevant statements and Puffs:
Sales talk, exaggerations e.g. best on the market!
No reasonable person is supposed to take it seriously
No affect on contract, not actionable
Representations:
Factual statements which are intended to and do induce the representee to enter the contract not made to be binding
Merely representational/description with no promissory intent – truth not guaranteed by their marker
LACK ANY CONTRACTUAL FORCE
False representations may constitute a misrepresentation innocent party may be able to rescind the contract, or attract remedies under statue (misleading and deceptive conduct)
Legal action is limited to actions in negligence or fraud (deliberately lied to you) or misleading or deceptive conduct under s18 of Australian Consumer Law
Terms:
Contractual undertakings intended to be binding – not merely representational
Commonly indicate the obligations of parties – promissory intention
Breach of term may give right to termination and damages for breach
Rights emanate from the contract itself because the statement has become a term of the contract and is incorporated as an express term e.g. through ‘warranties’, ‘intermediate terms’, conditions.
Terms and Representations:
In determining whether statements are terms or merely representations, the court in Ellul & Ellul v Oakes (1972) set out a number of factors that can be used to determine this issue:
These factors aren’t conclusive – merely indicators
Courts must decide