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INSIDE THE CONTRACT

INSIDE THE CONTRACT. Week 3 - Lecture 6. TERMS. Express terms in writing in speech Implied terms Officious bystander test Kavanagh v Gilbert Commercial efficacy The Moorcock. EXEMPTION CLAUSES. Was contractee aware of condition Ticket cases Time of notice Construction

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INSIDE THE CONTRACT

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  1. INSIDE THE CONTRACT Week 3 - Lecture 6

  2. TERMS • Express terms • in writing • in speech • Implied terms • Officious bystander test • Kavanagh v Gilbert • Commercial efficacy • The Moorcock

  3. EXEMPTION CLAUSES • Was contractee aware of condition • Ticket cases • Time of notice • Construction • Strictly construed

  4. AFFECT OF STATUTES • Sale of goods and supply of services act 1980 • Exemption clauses for consumers • Not enforceable unless fair and reasonable • Can’t contract out of fitness for purpose condition • Occupiers liability Act 1995 • European Regulations (unfair terms in consumer contracts) regulations 1995

  5. OCCUPIERS LIABILITY ACT 1995 • Para 5(1) An occupier may by express agreement or notice extend his or her duty “to recreational users, visitors or trespassers” • Para 5 (2) (a)…an occupier may by express agreement or notice restrict, modify or exclude ..duty towards visitors...

  6. PROVISIONS FOR SECTION 5(2) • (i) it is reasonable in all the circumstances • (ii) ..notice..the occupier has taken reasonable steps to bring the notice to the attention of the visitor. • (iii) …presumed to have taken reasonable steps to bring notice to the attention ...if it is prominently displayed at the normal means of access to the premises.

  7. UNFAIR TERMS • Only applies if contract not individually negotiated • Unfair if it causes significant imbalance in the parties’ rights and obligations … to the detriment of the consumer • Unfair term not binding on the consumer, rest of contract remains in force • Does not apply to certain contracts

  8. WARRANTIES • Should be distinguished from a ‘mere representation’. • In Insurance must be strictly followed • Promissory warranty • Leads to failure to pay claim • On breach leads to damages and not rescission.

  9. TYPES OF TERMS • Condition precedent • Prevents policy comes into existence. • Conditions subsequent • Policy exists but condition needs to be fulfilled in order for other party to do their part

  10. MISTAKE • Fundamental common mistake as to fact • Contract may be void • Mistake as to terms • Not normally allowed to rescind • Star of the East • Defendants sold tea. • Sample lower standard than cargo on ship • No rescission for mistake

  11. MISTAKE • Identity • Lewis v. Avery (1972) • Represented himself as Richard Greene • With whom was the contract being made?

  12. REMEDIES • Rescission • Contract never existed • Applies where mistake or breach of condition goes to root of contract • Rectification • Damages • Specific performance

  13. PUBLIC POLICY • Illegal contracts • Void • Gaming and wagering contracts • Gaming and Lotteries Act 1956 • Void • Contracts in restraint of trade • Void

  14. DISCHARGE OF CONTRACTS • Performance • Cutter v Powell (1795) • Sailor to crew from Jamaica to Liverpool at a wage of 30 guineas • Died therefore did not complete. • Agreement • Breach • Void and voidable

  15. DISCHARGE OF CONTRACTS • Operation of law • Frustration • Taylor v. Caldwell • Music hall destroyed by fire - contract frustrated

  16. QUESTIONS

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