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1. What are the principles by which a court classifies statements made ina contractual context as “terms” (i.e. part of the contract) or pre-
contractual “representations” (which are not part of the contract)?
4 principles
timing – closer to time -> term, further away ->representation
importance – more important -> term
bannerman v white – sale of hops
in writing -> term
reduction to writing – if in written doc, more likely to be term –
if oral then more likely to be representation
heilbut, Symons v buckleton
if maker of statement has specialist knowledge -> term
dick Bentley v harold smith
esso petroleum v mardon
Oscar chess v williams
from case heilbut, Symons & co v buckleton
principles more like guidance – may not be relevant all the time
denning mentioned – should use objective test [what a reasonable
person would do] – to test the intention of parties
general requirement – courts will always use
textualism v contextualism – depend on amount of time, depends
on case
2. Why does the categorisation of a statement as either a term of the
contract or a mere representation matter? To ensure the party
achieves the best damages, better damages with representation
three types of terms – conditions [most important – without
contract not been concluded – termination and damages],
warranties [least important - damages] and innominate [in
middle, whatever remedy depends on situation]
to know final legal status or innominate terms – criteria
hong kong fir shipping – 20 weeks out of 24 months ship not in
use – court concluded it was warranty because still lot of benefit
left for enjoyment
if cannot get whole benefit then condition, if can its performance
then warranty, capable of being broken in trivial manner then
innominate
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