Contents of Contract Flow Chart
Statements made during negotiations
Conditions and Warranties
Implied Terms Expressed Terms
Discharge of the Contract
Discharge of the Contract continued
Remedies available for breach of contract
Whether any dispute arises as to meaning of a contract it becomes necessary to construe (interpret) the terms of contract in order to ascertain intention to parties.
Where contract is made orally, express terms of contract will be ascertained by determining the words actually used by the parties when contract was made. This is essentially a question of fact.
If the contract has been reduced to…show more content…
One of the contracting parties may have (incorrectly) considered the representations to be terms.
Note: depending on the circumstances of a particular problem, the party who thought the misrepresentation was a term may have a legal action in other areas of contract law, eg fraudulent misrepresentation, s. 52 TPA (misleading and deceptive conduct)
Statements made during negotiations may be: • A term, • A collateral contract • A misrepresentation • A puff.
Terms and Collateral Contracts:
If a document is signed then the parties to the agreement are bound by the contents of the documents signed read • L’Estrange v Graucob (p219)
Unless there is a misrepresentation as to the contents of the document read • Pukallus v Cameron(p249)
If the document is unsigned or the agreement is verbal then the courts may have to determine the terms of the contract. The courts have developed tests over the years to assist them in identifying terms. These tests focus on the importance of the statements in issue to the parties, the time period between the statements and the contract being formed, the specialist knowledge of either of the parties about the subject matter of the contract, and the language used by the contracting parties.
If the representation is not a term of the contract the court may determine that it is a term of a collateral contract. A collateral contract is formed when a promise is made to