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

2. 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

3. 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

4. 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

5. 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

6. CONDITIONS
Conditions are the fundamental obligations set out in the contract

7. 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.

8. 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

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

10. 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

11. 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

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

13. 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.

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

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

16. 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).

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