Distinguish between terms and representations
- 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.
The importance lies in the different remedies, i.e. damages for breach of
contract is the usual remedy for a term which is untrue or not performed,
while the usual remedy for an untrue representation is rescission or
damages for misrepresentation.
Incorporation of terms into an oral contract
- 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.
Written contracts
What is agreed on paper normally forms the basis of the contract:
- the rule in L’Estrange v Graucob,
- the parol evidence rule – Goss v Lord Nugent.
Implied terms
Implied by custom, especially within a trade, as in a ‘course of dealing’, or
in a geographical area.
- Implied by statute, especially in consumer contracts, e.g. Sale of Goods
Act 1979 (as amended) sections 12 to 15. - Implied by the courts: on the facts – Samuels v Davis; or via the officious
bystander test – Shirlaw v Southern Foundries, Spring v National
Amalgamated Stevedores and Dockers Society, Trollope and Colls Ltd v
North West Regional Hospital Board; or to give business efficacy to an
agreement – The Moorcock, Liverpool City Council v Irwin.
Incorporation of terms 107