contract terms eval essay

eval of express and implied terms against

implying terms into a contract can cause uncertainty and unfairness as the deal thats been freely made is interfered with but express terms are fair because they are agreed so the court should not be permitted to rewrite a contract

what is an express term

a term specifically agreed between the parties themselves that can be verbal, written or part of a separate document

what is an implied term

a term put into a contract by parliament or the courts which can be because of the type of contract or based on the intentions of the party

eval of express and implied terms (for)

rules regarding signature and reasonable notice help to ensure fairness as contract terms must be presented before or at the time of the contract ensuring both parties know all the terms and harsh or unusual terms must be made of notice (interfoto v stilleto)

eval of express and implied terms (for)

only fair that courts imply terms that have been missed out or needed for the contract as seen in moorcock where the court inserted an implied term that the wharf was safe to dock at

eval of classification of terms (against)

dividing terms into conditions and warranties is too simplistic as modern commercial contract can be complex and the parties may not know a particular term is a condition but if broken it can end the contract seen in (hong kong Fir shipping case)

eval of classification of terms (against)

confusing as parties may not realise the effect of a breach when making a contract as a party may believe a term is only a warranty but the courts could decide it was a condition (poussard v spiders)

eval of classification of terms (for)

by classifying condition/ warranty it creates certainty and predictability because if a term is classified it should be recognised by the court and parties can maintain control of their contract by deciding what happens if its broken (lombard v butterworth)

eval of exclusion clauses (against)

unfair to allow terms to form part of a contract that exclude or limit a parties liability for their own breach of contract (photo production v securicor)

eval of exclusion clauses (against)

unfair to include a clause in small print or being referred to briefly on the back and make it a term of the contract as they know nobody will read it (parker v south east railway)