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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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