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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 23:42, 5 August 2021
, 23:42, 5 August 2021→A. Identifying and Classifying the Terms of a Contract
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A term of the contract is a promise made by the manufacturer or seller regarding the character or quality of an article. It can be either written or oral. Written terms will generally be straightforward to identify. Whether an oral statement can be properly considered a term may be less obvious. Not everything said by the seller will be a term of the contract. To be a term, the statement must be a specific promise that makes up part of the contract. | A term of the contract is a promise made by the manufacturer or seller regarding the character or quality of an article. It can be either written or oral. Written terms will generally be straightforward to identify. Whether an oral statement can be properly considered a term may be less obvious. Not everything said by the seller will be a term of the contract. To be a term, the statement must be a specific promise that makes up part of the contract. | ||
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 [[Consumer Protection from Deceptive and Unconscionable Acts (11:IV)|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 [[Consumer Protection from Deceptive and Unconscionable Acts (11:IV)|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): | ||