Terms
C is advise that Express Terms are those which have been expressly agreed upon the contracting parties. This
may be orally, in writing or both. It is, however, important to remember that not everything said by the parties
during negotiations subsequently become a term of the contract.
C is advise that there must be mutual agreement, consideration and intention to create legal relations, the term
of a contract become binding on parties and can be enforced in an action for a breach of contract. So accordingly,
a distinction must be made between a term and a representation. C is advised that this distinction will affect
the type of action that is brought against the party and the remedies that is available.
In differentiating between representations and terms, the court are looking objectively for the intention of the
parties by asking the question; What would a reasonable man conclude was the intention of the parties with
regards to a particular statement in view of the circumstances of the case at hand? R is advise that the court
have developed several guideline which assist in determining whether a statement is a representation or a term.
i. Important of the statement, more important greater likehood is term –Bannerman v White &
Couchman v Hill
ii. Representor has special knowledge or skill is term Dick Bentley Production Ltd v Harold Smith (Motors)
Ltd / Representee has special knowledge or skill is misrepresentation Oscar Chess Ltd & William
iii. Timing of the statement close to making of contract more likely is Term, if far from making of contract
less likely to be Term Routledge v McKay
iv. Statement in writing is term –Routledge v McKay
v. Accepting responsibility is term Schawel v Reade / Advise of Verification is misrepresentation Ecay v
Godfrey
Lord Moulton observed in Heilbut, Symons & Co v Buckleton that none of the factor are devisive test. The
presence or absence of these factor is not conclusive of the intention of the parties. The intention of the parties
is deduced from the totality of the evidence. C is advise that the statement made by D in the fact, is a term and
not merely a representation.
C is advise that the parol evidence rule concern a special instance in relation to the interpretation of written
contract. The rule said once a contract as been put in writing the parties cannot bring extrinsic evidence to add,
vary or to contradict the written documents as in Jacobs v Batavia and General Plantations Trust. Reason for
this rule is to promote certainty with regards the obligation of parties. It has potential to produce injustice in
some instance. To minimise the injustice there are number of exceptions.
i. If the written agreement was not intended to be the whole contract. Allen v Pink
ii. To show that the contract lacks validity because mistake, misrepresentation or lack of consideration
iii. To show that the contract does not yet operate or has cease to operate
iv. To prove custom (implied terms)
v. To show that the parties made collateral contract
R is advise that although in many occasion express terms will make up the whole of the contract, this is not
always the case as it is also possible that the parties have either failed to include a particular obligation and this
not expressed in the contract or, in fact, failed to provide for every contingency which may arise in relation to
the execution of the contract. This is where implied term come into play. Implied term are those terms which
have not expressly agreed parties, but which may or in some certain circumstance must, be implied into the
contract to supplement the expressly agreed obligation outlined in the contract and which thereby make up for
the omission of the parties. There are four categories of implied term.
GR: Court interpret and uphold the parties intention.
Exp:
i. Nature of Relationship, there are some relationship are standardised default rule, eg, tenant and
landlord, employee and employer as in Malik v BCCI. Scally v Southern Health Board court said they
don’t mind imply a narrow or a limited term into contract c/f Crossley v Faithful & Gould Holding court
C is advise that Express Terms are those which have been expressly agreed upon the contracting parties. This
may be orally, in writing or both. It is, however, important to remember that not everything said by the parties
during negotiations subsequently become a term of the contract.
C is advise that there must be mutual agreement, consideration and intention to create legal relations, the term
of a contract become binding on parties and can be enforced in an action for a breach of contract. So accordingly,
a distinction must be made between a term and a representation. C is advised that this distinction will affect
the type of action that is brought against the party and the remedies that is available.
In differentiating between representations and terms, the court are looking objectively for the intention of the
parties by asking the question; What would a reasonable man conclude was the intention of the parties with
regards to a particular statement in view of the circumstances of the case at hand? R is advise that the court
have developed several guideline which assist in determining whether a statement is a representation or a term.
i. Important of the statement, more important greater likehood is term –Bannerman v White &
Couchman v Hill
ii. Representor has special knowledge or skill is term Dick Bentley Production Ltd v Harold Smith (Motors)
Ltd / Representee has special knowledge or skill is misrepresentation Oscar Chess Ltd & William
iii. Timing of the statement close to making of contract more likely is Term, if far from making of contract
less likely to be Term Routledge v McKay
iv. Statement in writing is term –Routledge v McKay
v. Accepting responsibility is term Schawel v Reade / Advise of Verification is misrepresentation Ecay v
Godfrey
Lord Moulton observed in Heilbut, Symons & Co v Buckleton that none of the factor are devisive test. The
presence or absence of these factor is not conclusive of the intention of the parties. The intention of the parties
is deduced from the totality of the evidence. C is advise that the statement made by D in the fact, is a term and
not merely a representation.
C is advise that the parol evidence rule concern a special instance in relation to the interpretation of written
contract. The rule said once a contract as been put in writing the parties cannot bring extrinsic evidence to add,
vary or to contradict the written documents as in Jacobs v Batavia and General Plantations Trust. Reason for
this rule is to promote certainty with regards the obligation of parties. It has potential to produce injustice in
some instance. To minimise the injustice there are number of exceptions.
i. If the written agreement was not intended to be the whole contract. Allen v Pink
ii. To show that the contract lacks validity because mistake, misrepresentation or lack of consideration
iii. To show that the contract does not yet operate or has cease to operate
iv. To prove custom (implied terms)
v. To show that the parties made collateral contract
R is advise that although in many occasion express terms will make up the whole of the contract, this is not
always the case as it is also possible that the parties have either failed to include a particular obligation and this
not expressed in the contract or, in fact, failed to provide for every contingency which may arise in relation to
the execution of the contract. This is where implied term come into play. Implied term are those terms which
have not expressly agreed parties, but which may or in some certain circumstance must, be implied into the
contract to supplement the expressly agreed obligation outlined in the contract and which thereby make up for
the omission of the parties. There are four categories of implied term.
GR: Court interpret and uphold the parties intention.
Exp:
i. Nature of Relationship, there are some relationship are standardised default rule, eg, tenant and
landlord, employee and employer as in Malik v BCCI. Scally v Southern Health Board court said they
don’t mind imply a narrow or a limited term into contract c/f Crossley v Faithful & Gould Holding court
