Commercial Law Notes

Topics: Contract, Tort, Reasonable person Pages: 12 (2269 words) Published: August 24, 2013
* Issues e.g. whether there was a breach of duty
* Principles e.g. Breach if burden of harm was not great * Authorities e.g. Woods v Multi sport holdings ltd
* Applications e.g. The burden of using helmets was significant * Conclusion e.g. there is no breach
Law of Contract
Terms of the contract
* Express terms
* Terms stated and agreed to by parties
* In simple cases, terms stated in offer
* Eg, $ reward for cat
* Major commercial contracts require signs from both parties. * Contract contains most terms
* But, only needs to be written when statute requires
* Not necessarily written in 1 document.
* Pre-contractual statements
* If statement made during contractual negotiation is incorrect: * Breach of contract only if statement is term of contract. * 3 classifications
i. Puffery (not K)
a. Terms not taken seriously
ii. Representations (not K)
b. Statements which induce to contract, but not guaranteed. iii. Terms (K)
c. Statements designed to be binding, guarantee of truth. * If terms breached, remedied for breach of contract. * However will depend on Intention
* Oscar Chess v Williams [1957]
* Intent to guarantee truth of statement? Term/representation * Defendant had no intent to promise truth
* No greater knowledge than purchaser, neutral language. * Reasonable person would not expect guarantee.
* Factors which determine intention to bind
* Language used (promise etc)
* Savage v Blakney (1970)
* Seller gives estimate as answer to q
* No breach of k due to being estimate only
* Time of statement (has time passed since statement to agreement?) * Was it made in preliminary stage?
* Content of statement (importance/likelihood of intention) * Van Den Esschert v Chappell [1960]
* Importance of the statement led to being breach * Existence of written memo
* Was statement still present in written form?
* Relative knowledge/expertise of parties
* Statement made by party knowledgeable likely to be binding * Dick Bently Productions Ltd v Harold Smith Motors [1965]

* Implied Terms
* Not stated, but are included anyway.
* Eg, implied duty not to share confidential info
* Faccenda Chicken Ltd v Fowler [1986]
* Binding on all employees and post-employment
* Terms apply equally to written terms, but cannot contradict * Courts are reluctant to implied terms
* terms may be implied:
* If parties have history in dealing, terms from earlier agreements * Depends on if consumer or commercial contract, and whether term found in similar contracts * Through custom

* Implied through established custom
* Established practice in workplace/market/trade etc * Sagar v H Ridehalgh & Son [1931]
* Implied term due to custom held as term
* Cannot contradict terms of contract
* Summers v Commonwealth (1918)
* Business Efficacy
* Imply terms so that contract achieves what parties intended * Term must be:
* Reasonable
* Necessary to give efficacy
* Obvious
* Clear
* Cannot contradict any express terms.
* Terms implied by law
* Common law implied as “a good idea”
* Statute law implied term from legislation.
* NSW sales of goods act 19(2)

Classification of terms
* Conditions
* Terms which are vital to the contract
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