Identifying Contractual Terms Notes
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What are terms?
Question to ask = does the assurance given amount to an undertaking inside the contract? A =
Yes if assurance is contained in.... • Express Terms o These are terms explicitly agreed by the parties o Which can be either written or oral You're more likely to be able to enforce written contracts though o Parole Evidence Rule General rule = documents which purport to record a parties' agreement are sacred and no evidence can be brought to disprove or vary it. • However, are a number of exceptions..... o Where undue influence/duress/mistake/non es factum o Contract includes terms additional to those contained in document Whether express (collateral) or implied o Words of document do not accurately record parties' agreement (owing to mistake/fraud) Chen Wishart: so the rule is basically an easily rebuttable presumption....
• Collateral Terms and/or Collateral Contracts o In principle, a term or even a contract can be found which is collateral to the main terms Which add to Vary Contradict • The terms of the contractual document o Things which can be collateral terms: D's verbal/written assurance • Must have induced C to consent to contractual document o Not enough that this was a cause of C entering the contract C needs to show that but for that term, C would not have contracted at all. Signed Documents Notices References o Functions of collateral terms/contracts: Circumvent parole evidence rule Confer remedial advantages of an action for breach over misrepresentation • Means C can get his expectation rather than his reliance if he prefers in damages Override the Privity Rule • Shanklin Pier Ltd v Detel Products Ltd : o D told S that its paint was suitable for painting S' pier and would last X years. S instructed contractor to but D's paint - turned out to be less durable. S still managed to sue D on collateral contract despite not buying the paint
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