A more recent version of these Identifying Contractual Terms notes – written by Oxford students – is available here.
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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
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
? 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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