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
Innominate terms are terms without There are no clear The courts decide whether Despite this, the vague wording of
classification. The court will look at the guidelines as to what the consequence means that innominate terms allows the courts
consequence of the breach rather than consequence would allow the contract should be to cover every eventuality and it
Innominate terms its classification. There is a right to that the contract could be repudiated which can lead to means that nothing will be
repudiate the contract where it is fair to repudiated inconsistent decisions excluded simply because it wasn’t
both parties (Hong Kong Fir Shipping thought of when a definition was
Co Ltd v Kawasaki Kisen Kaisha) set.
Innominate terms look at the This could be considered For both conditions and It prevents long drawn out court
consequence of breach and not the to be unfair warranties the breach is cases because one side argues it
breach itself looked at it seems unfair that was intended to be a condition
this is changed because the whereas the other argues it was
Doesn’t focus on term isn’t classified. Could be only intended to be a warranty in
breach that something that could order to avoid having to repudiate
have been a condition will the contract. Not focusing on the
not end up with repudiation breach allows that there is flexibility
simply because it wasn’t
named as a condition
Innominate terms don’t have a This leads to vagueness as Most lay people will not be This will only occur if the parties
classification to what they actually are aware of the difference have failed to label the terms as a
which could cause between a condition and an condition or a warranty and it
Vagueness in the confusion. innominate term. This could would seem that if it didn’t fit into
wording cause confusion for the one of those categories it would be
parties as to which term they appropriate to look at a different
would be considered to be aspect
most like and the remedies
available
Conditions go to the root of the contract It could be argued that the This is because allowing the Due to the creation of innominate
and are the most important term creation of innominate parties to specify whether a terms it means that the court will
(Poussard v Spiers). Warranties are terms has led to less term is a condition, or a not consider what the parties
minor terms in a contract which if freedoms of contract warranty respects the actually meant if a term wasn’t
Conditions/ breached only entitles the other party principle of freedom of clearly labelled as a condition or a
warranty to claim for damages (Bettini v Guy) contract which allows the warranty seeing that there is
parties to maintain control another classification. This could
and predictability in a be very unfair as one party may not
contract by determining in be able to repudiate the contract
advance what will happen in even though this would appear to
certain eventualities. be fair. The fact that this is a courts
decision may lead to very
inconsistent results in similar court
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
Innominate terms are terms without There are no clear The courts decide whether Despite this, the vague wording of
classification. The court will look at the guidelines as to what the consequence means that innominate terms allows the courts
consequence of the breach rather than consequence would allow the contract should be to cover every eventuality and it
Innominate terms its classification. There is a right to that the contract could be repudiated which can lead to means that nothing will be
repudiate the contract where it is fair to repudiated inconsistent decisions excluded simply because it wasn’t
both parties (Hong Kong Fir Shipping thought of when a definition was
Co Ltd v Kawasaki Kisen Kaisha) set.
Innominate terms look at the This could be considered For both conditions and It prevents long drawn out court
consequence of breach and not the to be unfair warranties the breach is cases because one side argues it
breach itself looked at it seems unfair that was intended to be a condition
this is changed because the whereas the other argues it was
Doesn’t focus on term isn’t classified. Could be only intended to be a warranty in
breach that something that could order to avoid having to repudiate
have been a condition will the contract. Not focusing on the
not end up with repudiation breach allows that there is flexibility
simply because it wasn’t
named as a condition
Innominate terms don’t have a This leads to vagueness as Most lay people will not be This will only occur if the parties
classification to what they actually are aware of the difference have failed to label the terms as a
which could cause between a condition and an condition or a warranty and it
Vagueness in the confusion. innominate term. This could would seem that if it didn’t fit into
wording cause confusion for the one of those categories it would be
parties as to which term they appropriate to look at a different
would be considered to be aspect
most like and the remedies
available
Conditions go to the root of the contract It could be argued that the This is because allowing the Due to the creation of innominate
and are the most important term creation of innominate parties to specify whether a terms it means that the court will
(Poussard v Spiers). Warranties are terms has led to less term is a condition, or a not consider what the parties
minor terms in a contract which if freedoms of contract warranty respects the actually meant if a term wasn’t
Conditions/ breached only entitles the other party principle of freedom of clearly labelled as a condition or a
warranty to claim for damages (Bettini v Guy) contract which allows the warranty seeing that there is
parties to maintain control another classification. This could
and predictability in a be very unfair as one party may not
contract by determining in be able to repudiate the contract
advance what will happen in even though this would appear to
certain eventualities. be fair. The fact that this is a courts
decision may lead to very
inconsistent results in similar court
