Contract Law - Lecture 13b Expressed and Implied Terms Terms of Representations? · Statements may be made prior to the finalisation of a contract (ie during negotiations) - . if a party makes a statement during negotiations if the law holds that the statement is part of the contract, if there has been a breach then they will be liable and the . If judged not to be part then you cant argue that there is a breach leading to the breach of a term of a contract . If a false statement then there could be misrepresentation and give rise to remedies . Questions arise when there are disputes as to whether or not the statements were intended to form part of the contract. . If such a statement amounts to a promise which forms part of the contract, a party in breach will be liable for the full range of contractual remedies. . If the statement turns out not to be a term (ie not part of the contract), and turns out to be untrue, it may still give rise to remedies, but on a restricted basis. Identifying the terms Approach of the courts: Objective approach . Intentions of the parties- did the parties actually intend the statement to be contractually binding? - what would the reasonable man have assumed the parties to have intended . Detached objectivity- what would a reasonable third party have taken the parties to have intended? ie objective test . In determining these, the courts consider a number of factors. Factors 1. Knowledge of parties- Oscar Chess Ltd v Williams (1957); Bentley (Dick) Prod. v Smith (Harold) Motors Ltd (1965) (SOMEONES WANTED A BENTLEY, TOLD DEALER TO FIND A WELL-VETTED Bentely, dealing found car and said there was less miles than there was - held to be part of the contract - dealer should have known better- if argument as to whether something should be a term, courts usually consider weight of knowledge between parties, if knowledge looks more on one side then arguably should be part of the contract 2. Reliance/Importance at the time (whether statement carried weight, did parties know its importance) - Schawel v Reade (1913) - owner said horse was in perfect condition but had an eye disease, C didn't want it, held to be part of the contract ; Bannerman v White (1861). - seller talking to prospective buyer, buyer said not willing if had been treated by sulphur, assured not treated - held although statement not included in contract that it was part of the contract 3. Writing/ Parol evidence rule- when parties have recorded the whole of their contract in writing, there is a presumption that the written document is the whole contract- aren't meant to argue evidence contrary to what was decided in the written contract Shogun Finance Ltd v Hudson (2003). - court made it clear, if the law takes that view
for certain, people cant write up contract then come to the courts