1. Issue
Whether the leather being all natural is a term of the contract or not
Rule
The contents of an agreement are known as a clause or a term. There are various terms present in a contract. The primary terms of the contract include the price, the subject matter such as the description of goods and services.
Statements which are made in relation to negotiation of an agreement can be a representation or a contractual term. The remedy and appropriate cause of action would only be determined if it is known that a clause is a representation or a contractual term. In case there is a breach of contractual term a claim form breach of contract can be brought by the aggrieved party. On the other hand if a term is a representation which was not true the party can make a claim for misrepresentation.
For the purpose of deciding a clause is a term or a representation four factors are looked into by the courts.
In the case of Oscar Chess v Williams it was provided by the court that if the representor has more expertise the clause is a term of contract, whereas of the Representee has more expertise the term is a representation.
In the case of Ecay v Godfrey it was held by the court that where the importance of the statement has been indicated by the person to whom the representation is made the statement is a term of the contract.
In the case of Routledge v Mckay it was ruled by the court that if a long time has elapsed since the statement was made and the contract was formed it would be considered as a representation.
Where there is a written contract only the terms which have been incorporated are considered as contractual terms as stated in the case of
Application
In this case the importance of the statement had been notified by Peter to Cobbler suppliers by stating that many vegan clients are conscious environmentally.
Not much time had elapsed between the telephone conversation when the statement was made and the email where the contract was formed as it was done the same of the afternoon.
Both the parties have same expertise in relation to the subject matter of the letter
However as the contract have been done in writing online and it does not contain the statement related to vegan leather as per the parole evidence rule it would not be a term of the contract but a representation
Conclusion
The statement is a representation and not a contractual term
2. Issue
Was it an implied term that there would be vegan leather used to make the shoes and without any synthetic material
Rule
An expressed term is a contract which is clearly stated in the contract and has been agreed upon by the parties to the contract expressly as provided in the case of Wilson v Best Travel [1993] 1 All ER 353.
An implied term is a term of the contract which is not expressly agreed by the parties to it but is added to the contract by statutory provisions and the courts.
In the case of The Moorcock it has been provided by the court that an implied term is only added by the court when the court finds such term to be necessary for the continuation of the contract. This means that any reasonable person would know that such term is obviously present in the contract.
In the case of Shirlaw v Southern Foundries it was ruled by the court that an implied term cannot be added to the contract by the court merely because it is fair or just to do so. It is not the role of the court to determine whether a contract is just or not.
In the case of Liverpool City Council v Irwin the court ruled that in order to be an implied term the law must specify that it is necessary to be incorporated to protect the weaker party
Application
In the given circumstances it was not mentioned by Samantha while ordering for the shoes that she has allergy from synthetic colorings and therefore needs shoes which do not contain synthetic tint ACS.
Therefore the term was not communicated to Peter and it would not be regarded as an expressed term. as discussed in the rules above an implied term is only added if it is a custom of the trade being carried out or the court finds its obvious and necessary for carrying out the contract.
However in this case the term that that there would be vegan leather used to make the shoes and without any synthetic material cannot be an implied term as it is not obvious and necessary for the continuation of contract as no such information has been provided upon the formation of contract and although the term may have been fair or just but it cannot be implied term of the contract.
Conclusion
The term that there would be vegan leather used to make the shoes and without any synthetic material is not an implied term of the contract
3. Issue
Whether the term related to the color of the shoes is a condition or warranty of the contract
Rules
A condition as provided through the landmark case of Poussard v Spiers is a term which is fundamental to the formation of the contract. This means that the actual formation of the contract between the parties have been formed because the parties had the intention to abide by such terms. In case it is found that a party fails to abide by the condition in a contract such as the price and goods and services description the contract can be ended without any obligation by the aggrieved party
A warranty as provided by the famous case of Bettini v Gye is a term which forms the subject matter of the contract. However a warranty is not the base of the contract formation between the parties. A warranty is analyzed by the court based on the importance of such term to the contract. Violation of warranties only gives right to damages
Application
In this case Geoffrey has clearly provided Peter that he intends to buy shoes having size 13 along with white rubber soles. As such description was clearly provided by Geoffrey to peter while purchasing the shoes it can be said that the requirements were very important to him and without white soles he would have not got into the contract for purchase of shoes. Therefore it can be said that the color of the soles is a condition of the contract.
Conclusions
Color of the sneaker soles in a condition of the contract
4. Issue
Whether the exclusion clause can limit the liability of peter in relation to the color of the shoe soles
Rule
An exclusion clause is a term of the contract which is incorporated into it to enable the incorporator to evade a liability with respect to the contract
An exclusion clause can be incorporated by a party to the contract by either signature or brining such clause to the notice of the other party before the contract is formed as stated in the case of thornton v shoe lane parking ltd. However if the party does not bring the clause to the notice of the other party the clause is not valid as stated in the case of Curtis V Chemical Cleaning Co. Further an exclusion clause cannot be incorporated to evade a liability imposed by law
In case a exclusion clause does not have a certain meaning or has an ambiguous nature the court would provide meaning to such clause in a way that it would benefit the party who has not incorporated the clause into the contract as per- Baldry V Marshall.
Application
In this case the clause was displaced at the place where the customers were handled by peter. Thus the caluse was reasonably brought to the notice of Geoffrey before he went into the contract to purchase the shoes. Thus as per Curtis case the clause was incorporated into the contract properly as it was notified before the formation of the contract. The clause has been incorporated to restrict a contractual liability and not legal so it is valid.
However the clause which has been incorporated by peter is not certain. This can be said that there is no certainty to whether a term is a condition or a warranty and is decided by the court of law. The clause therefore being unclear as per the principles of Marshall Case will be interpreted in such a way as to favor Geoffrey and not Peter. This suggests that the term would be as far as possible treated as a condition which has also been discussed in the previous section. The clause is not valid in case of a condition. This it cannot restrict peters liability.
Conclusions
Liability of peter in relation to the contract cannot be restricted by such clause
Essay Writing Service Features
Our Experience
No matter how complex your assignment is, we can find the right professional for your specific task. Contact Essay is an essay writing company that hires only the smartest minds to help you with your projects. Our expertise allows us to provide students with high-quality academic writing, editing & proofreading services.
Free Features
Free revision policy
$10Free bibliography & reference
$8Free title page
$8Free formatting
$8How Our Essay Writing Service Works
First, you will need to complete an order form. It's not difficult but, in case there is anything you find not to be clear, you may always call us so that we can guide you through it. On the order form, you will need to include some basic information concerning your order: subject, topic, number of pages, etc. We also encourage our clients to upload any relevant information or sources that will help.
Complete the order form
Once we have all the information and instructions that we need, we select the most suitable writer for your assignment. While everything seems to be clear, the writer, who has complete knowledge of the subject, may need clarification from you. It is at that point that you would receive a call or email from us.
Writer’s assignment
As soon as the writer has finished, it will be delivered both to the website and to your email address so that you will not miss it. If your deadline is close at hand, we will place a call to you to make sure that you receive the paper on time.
Completing the order and download