Express Terms

9 Key excerpts on "Express Terms"

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  eBook - ePub

  Unlocking Contract Law

  • Chris Turner(Author)
  • 2014(Publication Date)
  • Routledge

    (Publisher)

  Quite simply, the terms of a contract are the obligations contained in it. Basically, then, a term is an expression of willingness by both parties to be bound by the obligation contained in it and if a term is breached, or not complied with, it will give the other party the right to sue.

  Terms can be introduced by the parties themselves or implied by other means. Express Terms are those which are agreed upon by the parties at the time the contract is formed. Since contracts can be formed in writing or orally or even by the conduct of the parties, then the terms may arise in many ways. They may form part of a written document. This in itself could be an individual expression of the agreement between the parties or indeed could be a standard method of contracting by a particular party, as in ‘standard forms’. In contrast, they may be nothing more than a simple oral promise. They may arise after a single, simple agreement or after long, protracted negotiations. They may be critical to the performance of the contract or they may be purely descriptive. What they all have in common is that the parties themselves have agreed on them and they are all subject to some form of legal action if they are breached.

  6.2.2  The process of incorporating Express Terms

  Clearly, the dividing lines between some of the categories of statements in section 6.1.2 above are not always obvious. Where a contract is in writing then the process of distinguishing is generally simpler. The terms are as stated in the written contract. Where, however, negotiations leading up to the contract are oral, the courts have developed guidelines to determine whether a particular statement is a term of the contract or not.

  In order to be a term of the contract, the statement must be incorporated and form part of the contract. Inevitably, since different parties may take a different view of the importance of particular pre-contractual statements, the courts have been called on to devise tests to determine whether or not a particular statement is incorporated as a term. In general, the courts adopt an objective analysis, basing their decision on what a reasonable man would consider was in the mind of the parties at the time they formed the contract.

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  eBook - ePub

  Commonwealth Caribbean Contract Law

  • Gilbert Kodilinye, Maria Kodilinye(Authors)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  Chapter 6 Terms

  DOI: 10.4324/9780203488645-6

  Contractual Terms

  The terms of a contract are its contents, and they define the rights and obligations arising from the contract. Contractual terms may be express or implied.

  Express Terms are those specifically laid down by the contract, and they consist of express oral or written statements made by the parties.

  Implied terms are those which are not specified in the contract but which are implied either (i) by statute, or (ii) by custom, or (iii) by the court.

  Express Terms

  A contract may be (i) purely written, (ii) purely oral, or (iii) partly written and partly oral. Generally, no formality is required for a term, whether oral or in writing (or partly orally or partly in writing), to form part of a contract. If the terms of a contract are in dispute, a court will determine what terms were decided on by the parties. The object of the court in this exercise is to do justice to the parties, and the court should not be ‘deterred by difficulties of interpretation, as difficulty is not synonymous with ambiguity’.1 This is a question of fact, and, in respect of oral contracts, precise evidence may be required in order to clarify exactly what the terms of the agreement were, as the dispute may turn on very fine details.2

  1 Hardman v MeisterBS 1993 SC 64.

  2 For example, in Smith v Hughes (1871) LR 6 QB 597, the dispute centred on whether goods were described as ‘good oats’ or ‘good old oats’;.

  Proof of Terms

  Oral contracts

  Terms and representations

  Statements made by parties can be categorised as (1) promises or (2) mere representations. Except in the case of the simplest transactions, there will generally be a period of negotiation before the final terms of the contract are agreed. Promises (sometimes called ‘warranties’) made during negotiations and not withdrawn will form part of an oral contract and are therefore binding. An action for damages will lie for breach of these terms.3

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  Commonwealth Caribbean Employment and Labour Law

  • Natalie Corthésy, Carla-Anne Harris-Roper(Authors)
  • 2014(Publication Date)
  • Routledge

    (Publisher)

  CHAPTER 4

  TERMS OF THE EMPLOYMENT CONTRACT AND CONDITIONS OF EMPLOYMENT

      SOURCES OF EMPLOYMENT CONTRACT TERMS

  The rights and obligations of the parties under the employment contract are called terms. These may be outlined by the parties in the contract, mandated by legislation, incorporated by the collective agreement or included by custom and practice. In appropriate circumstances, terms may also be implied by the courts or tribunals.

  It is important to establish from the outset that ‘Express Terms’ in the employment contract context refers to the terms directly discoverable by word or act rather than the fact that they have been reduced to a written statement or contract document. At common law there is no requirement that contractual terms be in writing; orally communicated terms may be equally binding.1 However, empirically, a written contract provides the best indication of the Express Terms that have been mutually agreed by the parties and, where necessary, is the best proof of the contours of the employment relationship.2

  It is common practice to include Express Terms in the employment contract in respect of the duties to be carried out by the employee, the length of the contract, and the quantum of remuneration. As with all contracts, the parties are free to negotiate the obligations and benefits to be had once they are not restricted by statute or public policy, and these will vary depending on whether the employment contract is temporary, for a fixed term, has renewable terms or is of an indefinite duration.

  Express Terms IN THE BODY OF THE CONTRACT

  The employment contract negotiating process is often characterised by standard form agreements which consist of non-negotiable terms that derive from extrinsic sources; in particular, legislation, collective labour agreements, and custom and practice. Although this may seem to operate as a fetter on the freedom to contract, the underlying policy objectives are invariably conceived to protect the employee’s interest as the perceived weaker negotiating party or, in any event, to support the maintenance of harmonious employment relations. Other important documents that have an impact on the employment relationship are written and oral communications exchanged before, during and after the signing of the contract, employee handbooks, disciplinary codes, and notice boards.3 It is a question of fact to be determined by the court or tribunal whether it was the intention of the parties to be bound by these types of documents where they have not been deliberately incorporated into the employment contract.4 Courts and tribunals have shown more of a willingness to do so where the employment contract makes reference to the document or it is attached to the employment contract itself.5

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  The Foundations of Engineering Contracts

  • F R Roulston, M.O'C. Horgan, F.R. Roulston(Authors)
  • 2003(Publication Date)
  • Routledge

    (Publisher)

  Any words (whether written or proved to have been spoken) which the parties are agreed shall form part of the contract (or the whole) are known as the Express Terms. However, there may be other terms which naturally follow as part of a contract, even though they may not have been uttered: these are the implied terms. In this section we deal with these two expressions and the terms to which they are applied. 1.3.1 Express Terms Where a contract is wholly in writing, its terms may be either in the contract itself, or in some other document which is referred to and identified, and hence automatically becomes a part of the contract documents. It may still be held by a court of law that an unidentified document must be considered to be a part of a contract, but this is solely a matter for the court, and the document concerned must be one which affects the contract as it stands and ought properly to have been introduced by a suitable reference. A problem arises when a contract is partly or wholly a spoken (verbal) contract, and the main task of the court will then be to determine exactly what words were used and what they meant. There is a similar problem if a contract is partly written and partly spoken. It must first be decided whether the spoken words did indeed form a part of the contract at all, or whether the written part comprises the whole of the binding contract between the parties. There is a general rule that a spoken word must not add to, vary or contradict anything that has been written and signed (on the ground that the written agreement would have been altered accordingly if it had been intended to amend it by the spoken words). Applied strictly, this rule can lead to injustice, and it is not therefore applied to matters which might affect the validity or the period of operation of the written contract

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  Law for Non-Law Students

  • Keith Owens(Author)
  • 2013(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  CHAPTER 7THE TERMS OF THE CONTRACT

  A normal business contract, whether written, verbal or made by conduct, consists of a promise or set of promises. These promises are called ‘terms’ and may be express or implied.

  An express term is what the parties said or wrote or included by their conduct. An implied term is a term which the parties did not expressly agree but which is necessary in order to make the contract work in a business sense.

  Implied terms mainly come from statute (for example, Sale of Goods Act 1979 implies a number of terms into contracts for the sale of goods) or from the common law (for example, the terms implied into a contract of employment). Occasionally, however, the court may be prepared to imply a term into a particular contract because the court thinks that the parties intended that such a term should be included.

  It is misleading to think that implied terms are the only way in which the law may intervene to lay down rules which may govern a contract. For example, the Sale of Goods Act 1979 lays down rules as to the time when ownership of goods passes from buyer to seller; the Employment Rights Act 1996 lays down minimum periods of notice which an employer or employee must give in order to terminate a contract of employment.

  Some of these rules apply only if the parties have not reached a contrary agreement. For example, the rules which govern the transfer of ownership from a seller to a buyer of goods come into this category. Other rules apply irrespective of agreement between the parties. For example, the rule which gives the employee a right to a minimum period of notice to terminate her contract of employment cannot be overridden by agreement between the parties.

  In respect of matters about which the parties are free to agree their own terms, there are a number of ways of doing this. Some are willing to agree on a set of terms which have been prepared by a trade association and appear to be fair to both parties; some are willing to contract only on their own terms or the terms of their own trade association; occasionally the parties agree a compromise where they adopt certain terms from one standard contract and certain terms from the other. In the latter case, this is sometimes done by making a one-off contract specially for the purpose, but is more commonly done by using one party’s standard terms as the basic contract and adding a memorandum or letter which states in what way the terms are to be amended.

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  eBook - ePub

  Beginning Business Law

  • Chris Monaghan(Author)
  • 2015(Publication Date)
  • Routledge

    (Publisher)

  Chapter 6 . This permits an agent to enter into a contract on the principal’s behalf and at a later date the principal, whose existence is unknown to the other party, can choose to intervene and enforce the terms of the contract. Another exception is assignment. Assignment is where the parties are able to assign their contractual obligations to third parties.

  These are not the only exceptions that exist. A broader exception is the Contracts (Rights of Third Parties) Act 1999, which confers the third parties with the right to enforce the terms of a contract to which they are not a party. The Act stipulates that third parties may have rights where the court refers to them by name, by class or where they match a particular description (s.1(3)). It is important to note that the Act does not confer liability on third parties; rather it just confers the right to enforce a benefit. In Chapter 4 we shall see how it is usual for contracting parties to include a contractual clause that prevents the Act from applying to a particular contract.

  EXPRESS OR IMPLIED TERMS

  Key definition: Express term

  This is a term that the parties have agreed should be included in their contract.

  Key definition: Implied term

  This is a term that the parties have not agreed should apply and instead will apply to the contract because of the common law, custom or an Act of Parliament.

  A term is express where the parties have agreed on the term themselves and it is included in their contract. A term is implied where it is included in the contract not by the parties’ own agreement but by implication. This occurs where an Act of Parliament, such as the Sale of Goods Act 1979, implies terms into a contract that stipulate that the goods sold must be of satisfactory quality (s.14(2)). The courts can imply a term in circumstances such as where such a term is required to give business efficacy to the contract. Terms can also be implied through custom and practice. In Chapter 4

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  Understanding Contract Law

  • Max Young(Author)
  • 2009(Publication Date)
  • Routledge

    (Publisher)

  I reach that conclusion … it tends towards certainty in the law. One of the essential elements of law is some measure of uniformity. One of the important elements of the law is predictability. At any rate in commercial law, there are obvious and substantial advantages in having, where possible, a firm and definite rule for a particular class of legal relationship, eg as here, the legal categorisation of a particular, definable type of contractual clause in common use. It is surely much better, both for shipowners and charterers (and, incidentally, for their advisers) when a contractual obligation of this nature is under consideration, and still more when they are faced with the necessity for an urgent decision as to the effects of a suspected breach of it, to be able to say categorically: ‘If a breach is proved, then the charterer can put an end to the contract’, rather than that they should be left to ponder whether or not the courts would be likely, in the particular case, when the evidence had been heard, to decide that in the particular circumstances the breach was or was not such as to go to the root of the contract. Where justice does not require greater flexibility, there is everything to be said for, and nothing against, a degree of rigidity in legal principle.

  9.5 Implied terms

  In addition to the terms expressly agreed between the parties there are sometimes terms implied into the contract. In such cases, therefore, in order to determine what the exact contract (agreement) is between the parties the Express Terms AND the implied terms must be taken together : together they constitute the one contract between the parties.

  NB Terms can be implied into a contract by custom, statute or by the court.

  9.5.1 Terms implied by custom

  In many ‘trades’ or areas of business there are to be found customs of various sorts. These customs can include ‘legal’ customs which have the effect of implying terms into a contract. To imply a term into such a contract the custom must be ‘notorious, certain, legal and reasonable’.

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  South Pacific Contract Law

  • Jennifer Corrin-Care(Author)
  • 2015(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  CHAPTER 8 TERMS

  INTRODUCTION

  This chapter is concerned with the problems that arise in determining the binding terms of an agreement. Where terms are in dispute, the courts must look at all the circumstances to determine what was agreed. The test is objective. Thus, in deciding the terms of agreement between the parties in Sun Islands Inc υ Fewtrell,1 Webster J said:

  The intention of the parties is, as a general rule, to be construed objectively. The language used by one party, whatever his real intention may be, is to be construed in the sense in which it would be reasonably understood by the other, or at least in the sense in which a reasonable person would construe it.

  The court will examine any written documents and also, subject to rules of evidence, look at what the parties said and did. From this evidence, the court will determine the terms which are binding in law upon the parties.

  This chapter examines ‘promissory terms’. These terms set out the parties’ undertaking to perform their part of the bargain and the details surrounding that undertaking, such as how the performance will take place. Promissory terms may be either express or implied. Express Terms may be either oral or written or may even be based on conduct of a party. Implied terms may arise from oral or written statements or from the conduct of the parties. As discussed later in this chapter, implied terms may also arise from extrinsic sources.

  Express Terms

  Terms or representations

  Promissory terms need not be written. Subject to statutory provisions, discussed in Chapter 9 , the whole contract may consist of oral statements. The contract may also be partly oral and partly in writing or may arise wholly or in part from conduct.

  Some statements made in the course of negotiations do not form part of the contract. Such statements are often oral, but may also be in written form. These statements may be representations or, as discussed in the context of the offer, they may be mere puff.2

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  The Modern Law of Contract

  • Richard Stone, James Devenney(Authors)
  • 2022(Publication Date)
  • Routledge

    (Publisher)

  6 The contents of the contract

  DOI: 10.4324/9781003143277-6

  Contents

  6.1 Overview 6.2 Introduction 6.3 Distinction between representations and terms 6.4 Remedies for pre-contractual statements 6.5 Express Terms 6.6 Implied terms 6.7 The Consumer Rights Act 2015 6.8 Statutory controls 6.9 Summary of key points 6.10 Further reading

  6.1 OVERVIEW

  Once the formation of a contract has been established, the next issue to deal with is the content of the contract. What are the parties’ respective rights and obligations under the contract? In practice, this is an extremely important issue for the parties. This chapter deals with the approach of the courts to mapping the precise rights and obligations of the parties. In doing this, the following issues become relevant:

  • Is a pre-contractual statement intended to be a term of the contract? This involves distinguishing between representations and terms, and identifying the factors, such as the importance of the issue, which help the courts to make a decision.
  • Remedies for pre-contractual statements. Where a statement is not part of the main contract, the party to whom it was made may nevertheless have a remedy on the basis of a collateral contract or for misrepresentation.
  • Express Terms (terms put forward by one or more of the parties). The courts need to consider (for example):
    • If a term has been put forward in writing but not in a signed document, has it actually been incorporated into the contract?
    • The precise meaning of a term – this will generally only arise where the term is ambiguous. Today the courts adopt a ‘purposive’ interpretation, taking account of the commercial context where appropriate.
  • Implied terms (terms arising by implication). There are two main bases on which terms may be implied:
    • Common law. Courts will normally only imply terms which are ‘necessary’, or as a matter of policy in particular types of contract (for example, landlord and tenant).
    • Statute. The main examples of statutorily implied terms are those contained, for non-consumer contracts, in the Sale of Goods Act 1979, relating mainly to the quality of goods. For consumer contracts, similar terms are included in the relevant contract by virtue of the Consumer Rights Act 2015.

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