Contract Law - Express Terms
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- čas přidán 1. 08. 2024
- The terms of the contract are the agreements that parties agree to be bound to but discovering what constitutes the terms is not always straightforward.
In the case of oral contracts the courts take a look at what was agreed between the parties (Smith v Hughes (1871) while for written contracts the courts look objectively at what is in the contractual document (Chartbrook Ltd v Persimmon Homes Ltd [2009]).
Part of that objective view means not taking into account external evidence of what the parties thought the interpretation of the contract ought to be (parol evidence rule) but there are a few exceptions to this:
- where the contract is both written and oral; Walker Property Investments (Brighton) Ltd v Walker (1947)
- if evidence proves a custom or trade usage
- where the contract is yet to take legal effect; Pym v Campbell (1856)
- cases of common mistake
The objective test was best summarised by Lord Steyn in Sirius International Insurance Co v FAI General Insurance Ltd [2005] when he said:
“the question is what a reasonable person, circumstanced as the actual parties were, would have understood the parties to have meant by the use of specific language. The answer to that question is to be gathered from the text under consideration and its relevant contextual scene.”
This 'contextual scene' is important and can often mean looking at what the commercial practice is within a given sector or industry (AIB Group plc v Martin [2001]).
If there is a discrepancy, the main contract will take precedence over small print (The Starsin [2003]).
In the absence of much or any commercial context the courts will take a more literal approach to the wording in the contract (Arnold v Britton [2015]).
Terms of a contract must be distinguished from representations as innocent representations do not offer any legal recourse. Telling the difference can be hard but the courts will take a number of factors into account:
- Was the representation a part of the contract (Bannerman v White (1861)) or simply part of preliminary negotiations (Routledge v McKay [1954])?
- While not essential (Birch v Paramount Estates Ltd (1956)), putting a representation down in writing indicates an intention to be bound
- if the representor had special knowledge or expertise, their statements are more likely to be considered a part of the contract (Harding v Eddy [1951])
There may also be some circumstances where the courts do not see an agreement between the parties as either a term or a representation but rather a collateral contract that is separate but linked to the main contract (City and Westminster Properties Ltd v Mudd [1959].
Very good lecture , easy to understand 🙏👍
Another great video Marcus - very insightful! Cheers.
Awesome video Marcus,
I wish you were Irish, so you could be more relevant to my studies, but alas!
It would be cool if you did some more videos that aren't based around law, like a vlog every so often. But of course keep law as your essence.
A video on writing essays or answering problem questions would also be helpful. Keep up the good work!
I'm technically half-Irish but never lived there so that's not of much help! You should grab my free eBook on answering problem questions btw!!
Many thanks Mr Cleaver.
I watch your videos to the end just to hear you say byeeee huehue, love your videos!
Thank you
Really helpful, you’re superb at explaining these relatively complex ideas in an understandable way.
Legend
Hey Marcus brilliant video! please please please do a video on Misrepresentation!
Hi Marcus
That was brilliant on Express Terms. Are you going to cover Misrepresentations anytime soon?
Sure, if you're interested I can do it next if you like!
Hi Marcus! I've been trying purchasing your employment law ebook but payment wouldn''t proceed! Is the ebook no longer available?
hey Marcus could you please do a video on how to write a case note?
use ILAC
Hello Marcus, do you offer 1 to 1 lessons ? Best wishes
The world's gone mad!
Surely it's 'expressed' - not 'express'??