A more recent version of these Remedies notes – written by Cambridge/Bpp/College Of Law students – is available here.
The following is a more accessble plain text extract of the PDF sample above, taken from our GDL Contract Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
2. Valid Contract?: valid offer, valid acceptance, ICLR/capacity, consideration.
5. Condition / Warranty / Innominate Term?
- Condition: 'goes to root of the contract' (Poussard v Spiers & Pond: actress obliged to play in operetta from 1st night). effect of breach: innocent party can -
1. treat contract as repudiated (i.e. terminate) ? parties released from future obligations (i.e. contract price). OR can affirm: both parties remain bound to perform obligations ? can sue for damages for breach.
2. claim damages. ss12-15 Sale of Goods Act 1979 implied terms: s12(1): seller has right to sell goods. ? s12(5A): condition. s13(1): goods correspond with description ? s13(1A): condition. s14: quality/fitness s14(2): goods of satisfactory quality (when sold in course of business). s14(2A): standard - what RP would regard as satisfactory taking a/c of description, price etc. s14(2B): inc. (a) fitness for all purposes for which goods of that kind commonly supplied; (b) appearance/finish; (c) no minor defects; (d) safety; (e) durability. s14(2c): unless brought to buyer's attention / examines.
s14(3): fitness for particular purpose made known by buyer to seller (unless buyer did not rely / unreasonable to rely on skill/judgment of seller). s14(6): s14(2) + s14(3) conditions. s15: samples - bulk will correspond with quality. exception: breach so slight that unreasonable to reject + buyer not dealing as consumer ? warranties (s15A).
- Warranty: does NOT 'go to root of contract' (Bettini v Gye: singer obliged to take part in 6 days of rehearsals before 1st show). effect of breach: innocent part can claim damages only.
- Innominate term: dep. on seriousness of effect of breach (Hong Kong Fir Shipping Co v Kawasaki Kisen Kaishi Ltd). ss13-15 Supply of Goods and Services Act 1982 implied terms (not specif ied ? [Treitel]: innominate). s13: supplier will carry out service with reasonable care + skill (when acting in course of business). s14: supplier will carry out in reasonable time (when acting in course of business). s15: party contracting with supplier will pay reasonable charge (when not determined by contract).
6. Valid Liquidated Damages Clause?
- Structure: requirements for valid clause - Incorporation?
1. notice at time/before contract (Olley v Marlborough Court).
2. document has legal effect: a. signature (L'Estrange v Graucob); or b. reasonable notice. Construction?: valid LDC or penalty clause (see Dunlop Pneumatic Tyre Co v New Garage Motor Co test).
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