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contractual terms tutorial work
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1. What is the difference between a term implied ‘in fact’ and ‘in law’?terms implied in fact are very specific to particular transaction
and can be generalised – parties failed to specify particular term
in contract
because term so obvious should have been in there – officious
bystander test
business efficiency – for of necessity [comes from Moorcock
case]
terms implied in law are going to be applied in all contracts of
particular type of legal relationship – courts likely to imply term
- parties failed to specify what would happen if specific event
happened
2. How do the courts decide whether a term has been incorporated into
(a) a signed, and l’estrange – if signed, then bound to contract
exceptions – modification [Curtis] case
- misrepresentations
court of dealing,
incorporation of terms via notice – requirements [must be given
at or before confirmation [thornton v shoelane parking, olley v
Marlborough court] – whatever comes after is not included
requirement – need to give sufficient reasonable notice [parker v
south eastern case] – if give notice in such a way that customer
did not know of writing and notice on ticket, then will not be
bound
customer has to be aware of notice
requirement – term must be contained/referred to in doc intended
to have contractual effect [chapelton v barry] – receipt prove
payment, not relevant in this sense
also have statutes – unfair contract terms act and consumer
rights acts
(b) an unsigned contract?
3. In The Moorcock, did the wharfingers impliedly promise (a) that the berth
was safe; (b) that they had taken reasonable steps to make it safe; (c)
that they had taken reasonable steps to find out whether it was safe? C
Does the Court imply only the minimum term necessary to give the
contract business efficacy? court will only imply minimum term
because Minimum term necessary – jetty owner had taken
reasonable care to ensure berth was safe
Was that particular term necessary? Yes, necessary to imply that
term
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