Contracts - Express Terms

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Week 5 – Express Terms
** N.B. The main cases covered in lectures, containing MAIN RULES are highlighted in YELLOW!


Introduction – Contents of a Contract? * Express Terms: contain contractual promise and terms that are capable of being

Incorporation by pre-contractual statement: * Courts look at what the parties said * Have these statements become express terms? Statements the court acknowledges: * Irrelevant statements and Puffs: * Sales talk, exaggerations e.g. best on the market! * No reasonable person is supposed to take it seriously * No affect on contract, not actionable * Representations: * Factual statements which are intended to and do induce the representee to enter the contract not made to be binding * Merely representational/description with no promissory intent – truth not guaranteed by their marker * LACK ANY CONTRACTUAL FORCE * False representations may constitute a misrepresentation innocent party may be able to rescind the contract, or attract remedies under statue (misleading and deceptive conduct) * Legal action is limited to actions in negligence or fraud (deliberately lied to you) or misleading or deceptive conduct under s18 of Australian Consumer Law * Terms: * Contractual undertakings intended to be binding – not merely representational * Commonly indicate the obligations of parties – promissory intention * Breach of term may give right to termination and damages for breach * Rights emanate from the contract itself because the statement has become a term of the contract and is incorporated as an express term e.g. through ‘warranties’, ‘intermediate terms’, conditions.

Terms and…...

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