SESSION 11 – SPECIALIST TERMS Unit 3 – Law for Business SESSION 11 – SPECIALIST TERMS

OBJECTIVES Recap on previous session Mistake Misrepresentation Group seminars Force Majeure Retention of title Price variation Liquidated damages Introduction to specialist terms Express and implied terms Ways of discharging a contract Frustration Agreement Breech Performance

EXPRESS AND IMPLIED TERMS Important to ascertain what was said by parties, and the extent to which this can be considered a contract Statements Pre-contractual Contractual Representation Express Implied

INTRODUCTION Prior to contracts being made, various representations will take place Various terms will be specified and these can be broken down into two main types; Express Implied

EXPRESS TERMS These highlight what was said or written in relation to what each of the parties to a contract intend to do in order to undertake their part of the contract. However, the law recognises that some facts are more important than others, and distinguishes between these

CONDITIONS Conditions are the fundamental obligations set out in the contract

WARRANTIES Warranties are less important obligations. A failure to perform these does not undermine the roots of the contract. Note that this use of the term warranty is different from the more familiar one of the guarantee.

INONIMATE TERMS Lie somewhere between conditions and warranties Their significance depends on interpretation This can result in the injured party terminating the contract or treat the contract as repudiated and claim damages

ACTIVITY In pairs read through the given contracts and try to apply the terms we have just discussed.

IMPLIED TERMS All implied terms must comply with statutory requirements if they are to be considered lawful E.g. if by custom and practice a firm has typically received goods of a given quality standard from its supplier, it would be assumed that a new contract to supply, say football shirts would also imply a similar level of quality

QUESTIONS THE COURTS MAY USE TO DETERMIN WHETHER A TERM IS IMPLIED In the terms of employment contract, they may ask whether it is; Necessary to the functioning of the contract Reflecting the obvious intention of the parties at the time the contract was concluded An inevitable incidence of the employment relationship

WAYS OF DISCHARGING A CONTRACT By Agreement By Performance DISCHARGE OF CONTRACTS Breach Frustration

AGREEMENT In creating an agreement the parties may agree a point at which it will be terminated. A new agreement can also terminate the existing contract.

PERFORMANCE Performance involves parties to the contract performing their part of the bargain

FRUSTRATION If it is impossible to perform a contract from the outset then it is void

BREACH Anticipatory Takes place when breach occurs before the time for performance to arrive. The wronged party can sue for damages or wait until the time the performance is expected to occur Actual Involves breach in the performance of the contractual terms. It is a necessity for an innocent party to show that the breach affects a vital part of the contract (condition rather than warranty).

Research Activity Research further details surrounding Implied and Express terms within contracts You are also to find relevant examples for ways of discharging contracts