E-SEMINAR MASTER DOCUMENT Seminar Topic: Expressed and Implied Terms Group Names: Bronwyn Sellick, Hannah Moore, Sam Moncur, Harriet Kennedy Date: 21st January 2019 (IDENTIFICATION OF ISSUES) The Legal issues in the scenario are: Terms: - If a statement made during negotiations amounts to a promise which forms part of the contract, a party in breach will be liable for the full range of contractual remedies. Expressed Terms: - Terms that are expressly or specifically stated, either orally or in writing. Implied Terms: - Terms that are not expressly or specifically stated, but are usually obvious to both parties that they will be included in the contract. Representations: - A statement made that has no intention of being included in the contract. Warranty: - Written guarantee issued tpo the purchaser of anm article by its manufacturer promising to repair or replace if it is necessary within a specified period of time - Condition: major term of the contract (EXAMINATION OF PRINCIPLES) The relevant and important principles and cases are: To determine whether a term of a contract has been breached, it is important to determine whether the term formed part of the contract or not. Statements made between two parties, A and B, when negotiating will only become terms of the contract if one party, A, reasonably relies on the other
party's, B, statement and the party, B, knows (or ought to know) that A could be relying on the statement. This was established in the case of Schawel v Reade [1913]. Expressed term of fertiliser being made from recycled waste - Adam expressed the importance of the fertiliser being made from recycled waste due to him being a proponent of green living. Using Bannerman v White, when the representee expressingly informs a representer of the significance of their representation to the contract, the representation is likely to be viewed as amounting to a contractually binding term. Innominate term approach - Using Hong Kong Fir Shipping Co Ltd v Kawasaki Kisa Kaisha Ltd, the court would take the innominate term approach, and would focus on clarifying the term itself as a condition or warranty, looking at the effect of the breach to determine if the breach has substantially deprived the innocent party of the whole benefit. As the lack of the tool required to unload the fertiliser bags caused some to be spilt, it would be classed as substantial deprivation as Adam has lost a quantity of his order which would need to be re-ordered. The word 'some' tells us that it is more than a few bags, thus adding to the argument that it is substantial Schawel v Reade [1913] 2 Ir Rep 81 The claimant purchased a horse from the defendant. The claimant went to see the horse and had told the defendant that he wished to use the horse for stud purposes. Whilst he was examining the horse, the defendant told him that the horse was sound. He stated that if there was anything wrong with the horse