Detailed notes (primarily case notes) on the topics of Incorporation of terms and construction, factors vitiating a contract and damages and included are super summaries ideal to take into an open book exam....
The following is a more accessible plain text extract of the PDF sample above, taken from our Contracts 2 Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Case Book Summary (Identifying Express Terms)
Terms and Communication of the Parties
Normally terms of a contract will be express (expressly agreed between the parties)
These can also be supplemented by implied terms – terms that are implicit in the contract and hence recognized by law
Express terms can be found in the communications by which a contract is made (negotiations/documents)`
In identifying the terms of a contract, courts attempt to give effect to the intentions of the parties, objectively assessed
Standard Form Contracts (contracts of adhesion) (SFCs)
Standard-form contracting in the electronic age (2002) NYULR 429
|
---|
Statements made during negotiations
Parties negotiation contracts make many statements relating to the contract – if one is false a party may seek a remedy
If the statement was promissory –the appropriate remedy will be a remedy for breach of contract
If the statement was a representation – relief would be sought under the law of misrepresentation
The first issue is whether or not the term is admissible in court
Then the intentions of the parties as to the status of the statement must be considered – here written statements are accorded with considerable significance Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 219 CLR 165
But it is possible for negotiations to have contractual force – relevant factors include: the language use, the relevant expertise of the parties, the importance of the statement, the timing of the statement and the form of the written contract
JJ Savage & Son Pty Ltd v Blakney (1970) 119 CLR 435 Relevant Facts: The respondent (B) contemplated buying a motor boat from the appellant (J). During the course of negotiation B requested J to produce in writing his views on various engine: fuel consumption, estimated speed etc. – the latter of which was 15mph. Relying on J’s advice, B placed a formal order for the boat which was executed. Nothing in the contract stipulated its maximum speed. The boat wasn’t capable... |
---|
Buy the full version of these notes or essay plans and more in our Contracts 2 Notes.
Detailed notes (primarily case notes) on the topics of Incorporation of terms and construction, factors vitiating a contract and damages and included are super summaries ideal to take into an open book exam....
Ask questions 🙋 Get answers 📔 It's simple 👁️👄👁️
Our AI is educated by the highest scoring students across all subjects and schools. Join hundreds of your peers today.
Get Started