CHAR_A01.PDF, page 1-18 @ Normalize ( CHAR_A01.QXD )

Answers guide 301

Question 6

The material to use here is similar to question 4. Phrase it in a way that

answers the question.

Chapter 6: Incorporation of terms

Question 1

• Introduce the distinction between terms, which form part of a binding
  contract, and representations, which are merely pre-contractual
  statements.


• The distinction will be governed by: special knowledge of the representor
  
  
  • Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd, Oscar
    Chess v Williams; importance placed on a particular issue – Bannerman
    v White; distance in time between statement and contract – Routledge v
    McKay; strength of inducement – Ecay v Godfrey, Schawel v Reade.
  
  
  
  


• Apply these factors to the incident between Smith and Jones regarding
  whether the claim over the age of the motor-cycle is a term of the
  contract. If it is, Jones may be able to claim breach of contract. If not,
  he may be able to claim misrepresentation.


• Discuss the importance of incorporation of terms into a contract. The
  following should be included: degree of notice – Chapelton v Barry
  UDC, Parker v South Eastern Railway, Sugar v LMS Railway; course
  of dealing – Hollier v Rambler Motors (AMC) Ltd, McCutcheon v
  David MacBrayne Ltd, British Crane Hire Corporation Ltd v Ipswich
  Plant Hire Ltd; time at which the notice was given – Olley v
  Marlborough Court Ltd, Thornton v Shoe Lane Parking Ltd.


• Apply these factors to the incident with Seaview Hotel. If the term on
  the back of the bedroom door is not incorporated, then the hotel will not
  be able to rely on its protection in a claim by Jones.

Question 2

• Explain that terms may be written, oral or a mixture of these, and that
  they may also be express (clearly expressed by the parties) or implied
  (incorporated in some other way, e.g. by statute).


• Distinguish between terms and representations (see the first part of
  Question 1).


• Explain how the difference between the two results in the different
  remedies, i.e. damages for breach of contract is the usual remedy for an
  term which is untrue or not performed, while the usual remedy for an
  untrue representation is rescission or damages for misrepresentation.


• Explain how terms are incorporated into an oral contract (see the
  second part of Question 1).

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