Essay Framework for Evaluation Questions – Section B’s, Q.3 (25 marks)
10 marks AO1 DESCRIBE 15 marks AO3 EVALUATE
Point of Law AO1 Description of the law AO3 Issue/Criticism AO3 Why a problem AO3 Why not a problem
1. Innominate terms are terms without There are no clear guidelines The courts decide whether Despite this, the vague
classification. The court will look at the as to what would be likely to be the consequence means that wording of innominate terms
consequence of the breach rather than treated as a warranty or a the contract should be allows the courts to cover
its classification. There is a right to condition repudiated and as there are every eventuality and it
Innominate terms repudiate the contract where it is fair to no clear guidelines this can means that nothing will be
both parties. (Hong Kong Fir Shipping lead to inconsistent decisions excluded just because it
Co Ltd v Kawasaki Kisen Kaisha) in cases which deal with wasn’t thought of when a
innominate terms definition was set
2. For incorporation of express terms a In some cases what would This is unfair as someone However, if a term is
term will not be incorporated if what appear not to be a contractual may sign a document without incorporated without it being
was signed wasn’t a contractual document has been considered realising that it is legally on what would normally be
Contractual document. (Grogan v Meredith Plant to have incorporated the terms binding. considered a contractual
Document Hire) if there have been prior document it will only normally
dealings be accepted if it has occurred
previously
3. Warranties are minor terms in a In some cases such as Bettini v
In the case d failed to turn up Conversely, if people could
contract. If a warranty is breached the Guy it would seem unfair that to rehersal but this was only repudiate contracts simply
other party can claim for damages the contract couldn’t be considered to be a warranty. because a warranty was
(Bettini v Guy) repudiated. Although this was less breached this could lead to
Breach of a important than turning up for contracts being constantly
warranty the concert it could be argued repudiated and overwhelm the
that they should have been legal system.
able to repudiate the contract
as d had n practice and it
could have affected the root
of the contract
4. The less time between the making of a There are no set guidelines on Some contract negotiations The courts will decide if too
statement and the formation of the what would be considered to take a long period of time much time has passed. It is
contract the more likely it is that the be too much time between the before the contract is formed good that there are no set
statement is a term rather than a statement and the formation of and a statement intended to guidelines as it would seem
Representations representation. the contract be in the contract could end better that it be decided on a
up being a representation case by case basis rather
instead simply because the than setting a concrete limit.
contract took a long time to
form.
Reforms: The law should stipulate that a contracting party is made aware of the terms of a contract by evidentially reading the terms of the contract.
Repudiation should be allowed for breach of warranty if its breach could impact negatively on a condition.
10 marks AO1 DESCRIBE 15 marks AO3 EVALUATE
Point of Law AO1 Description of the law AO3 Issue/Criticism AO3 Why a problem AO3 Why not a problem
1. Innominate terms are terms without There are no clear guidelines The courts decide whether Despite this, the vague
classification. The court will look at the as to what would be likely to be the consequence means that wording of innominate terms
consequence of the breach rather than treated as a warranty or a the contract should be allows the courts to cover
its classification. There is a right to condition repudiated and as there are every eventuality and it
Innominate terms repudiate the contract where it is fair to no clear guidelines this can means that nothing will be
both parties. (Hong Kong Fir Shipping lead to inconsistent decisions excluded just because it
Co Ltd v Kawasaki Kisen Kaisha) in cases which deal with wasn’t thought of when a
innominate terms definition was set
2. For incorporation of express terms a In some cases what would This is unfair as someone However, if a term is
term will not be incorporated if what appear not to be a contractual may sign a document without incorporated without it being
was signed wasn’t a contractual document has been considered realising that it is legally on what would normally be
Contractual document. (Grogan v Meredith Plant to have incorporated the terms binding. considered a contractual
Document Hire) if there have been prior document it will only normally
dealings be accepted if it has occurred
previously
3. Warranties are minor terms in a In some cases such as Bettini v
In the case d failed to turn up Conversely, if people could
contract. If a warranty is breached the Guy it would seem unfair that to rehersal but this was only repudiate contracts simply
other party can claim for damages the contract couldn’t be considered to be a warranty. because a warranty was
(Bettini v Guy) repudiated. Although this was less breached this could lead to
Breach of a important than turning up for contracts being constantly
warranty the concert it could be argued repudiated and overwhelm the
that they should have been legal system.
able to repudiate the contract
as d had n practice and it
could have affected the root
of the contract
4. The less time between the making of a There are no set guidelines on Some contract negotiations The courts will decide if too
statement and the formation of the what would be considered to take a long period of time much time has passed. It is
contract the more likely it is that the be too much time between the before the contract is formed good that there are no set
statement is a term rather than a statement and the formation of and a statement intended to guidelines as it would seem
Representations representation. the contract be in the contract could end better that it be decided on a
up being a representation case by case basis rather
instead simply because the than setting a concrete limit.
contract took a long time to
form.
Reforms: The law should stipulate that a contracting party is made aware of the terms of a contract by evidentially reading the terms of the contract.
Repudiation should be allowed for breach of warranty if its breach could impact negatively on a condition.
