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Difference between revisions of "Contracts for Sale of Goods (11:III)"
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Contracts for Sale of Goods (11:III) (view source)
Revision as of 23:40, 5 August 2021
, 23:40, 5 August 2021→A. Identifying and Classifying the Terms of a Contract
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If a statement is not a term, it may be either a representation or a puff. A representation is a material statement of fact made to induce the other party to enter the contract. A puff is vague sales talk not meant to have any legal effect. For example, a statement that “This is a wonderful car” would be a puff and not meant to be taken literally as a contractual term (see 11:IV G. False or Misleading Advertising) | If a statement is not a term, it may be either a representation or a puff. A representation is a material statement of fact made to induce the other party to enter the contract. A puff is vague sales talk not meant to have any legal effect. For example, a statement that “This is a wonderful car” would be a puff and not meant to be taken literally as a contractual term (see 11:IV G. False or Misleading Advertising) | ||
Whether a statement is a term, representation, or puff affects the remedy available to the consumer: damages (see D. Remedies for Breach of Contract below), rescission (under a claim of misrepresentation; see 11:IV G. False or Misleading Advertising), or no remedy, respectively. For this Chapter, we are concerned with terms of a contract. | Whether a statement is a term, representation, or puff affects the remedy available to the consumer: damages (see ''D. Remedies for Breach of Contract'' below), rescission (under a claim of misrepresentation; see 11:IV G. False or Misleading Advertising), or no remedy, respectively. For this Chapter, we are concerned with terms of a contract. | ||
If a statement is a term of the contract, it can be a condition, warranty, or innominate term. A well-drafted contract will characterize particular terms as conditions or warranties, though the wording used in the contract will not always be determinative ([https://www.bailii.org/uk/cases/UKHL/1973/2.html ''Wickman Machine Tool Sales Ltd. v L. Schuler A.G.'', [1974<nowiki>]</nowiki> AC 235]). The three types of terms are as follows ([https://www.bailii.org/ew/cases/EWCA/Civ/1961/7.html ''Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd'', [1962<nowiki>]</nowiki> 2 QB 26, [1962<nowiki>]</nowiki> 1 All ER 474] at para 49): | If a statement is a term of the contract, it can be a condition, warranty, or innominate term. A well-drafted contract will characterize particular terms as conditions or warranties, though the wording used in the contract will not always be determinative ([https://www.bailii.org/uk/cases/UKHL/1973/2.html ''Wickman Machine Tool Sales Ltd. v L. Schuler A.G.'', [1974<nowiki>]</nowiki> AC 235]). The three types of terms are as follows ([https://www.bailii.org/ew/cases/EWCA/Civ/1961/7.html ''Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd'', [1962<nowiki>]</nowiki> 2 QB 26, [1962<nowiki>]</nowiki> 1 All ER 474] at para 49): | ||