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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 23:47, 5 August 2021
, 23:47, 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 [[Consumer Protection from Deceptive and Unconscionable Acts (11:IV)|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 | Whether a statement is a term, representation, or puff affects the remedy available to the consumer: damages (see <u>D. Remedies for Breach of Contract</u> 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): | ||
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Innominate or intermediate terms arise out of the common law, but unlike conditions and warranties, they are not mentioned in the SGA. An innominate term is one that may be treated as either a condition or a warranty, depending on how severe the consequences of a breach turn out to be. Whether an innominate term is a condition or a warranty is for a judge to decide. | Innominate or intermediate terms arise out of the common law, but unlike conditions and warranties, they are not mentioned in the SGA. An innominate term is one that may be treated as either a condition or a warranty, depending on how severe the consequences of a breach turn out to be. Whether an innominate term is a condition or a warranty is for a judge to decide. | ||
:'''NOTE:''' For certain terms, the ''SGA'' specifies whether they are conditions or warranties. The ''SGA'' also implies some terms as conditions or warranties even if they are not expressly included in the contract (see | :'''NOTE:''' For certain terms, the ''SGA'' specifies whether they are conditions or warranties. The ''SGA'' also implies some terms as conditions or warranties even if they are not expressly included in the contract (see <u>C. Provisions of the Sale of Goods Act</u> below) | ||
== B. Determining if the Sale of Goods Act Governs the Contract == | == B. Determining if the Sale of Goods Act Governs the Contract == | ||