To take the given facts into consideration to highlight whether the absence of gluten in the almond flour procured from Tower was a term or not
The critical statements stated at the pre-contractual stage are termed as representations or terms. These statements are having their own importance because the decision of enacting a contract is based on the accuracy of these statements. Moreover, after the enactment of the contract if the statements are found out to be false, then in such situation the innocent party can revoke the contract and file the claim in court against the party based on the breach of term. Therefore, it is imperative to define that in which scenarios the statement could be defined as a term.
As per the judgement cited in Routledge v McKay case, a statement become term only when the gap between announcing the statement and reaction or decision of other party to create contract is very limited or minimal..
If the prerequisite aspect for the contract is the statement only then it would likely to be a term for the contract. The leading case is Bannerman v White case. In this regards, it can be expected that the party would not create the legal relation with the party if the statement is not satisfied..
It is imperative that party must have minimal requisite skills to decide the correctness of the statement as per the verdict of Harling v Eddy case.
If the statement is written in the contractual form then it would liable to considered as a legal term of the contract as decided in is a short Birch v Paramount Estate case.
Mikaela runs a cake shop and makes a purchase of gluten free almond flour from Tower Flour. Rickey who is the officer of Tower Flour has replied to Mikaela that the almond flour does not contain gluten. Mikaela ordered 40 kilogram of almond flour from Tower Flour as highlighted in the contract form. It is seen that
Therefore, it can be decided that gluten free almond flour is a term for the principle contract, despite the fact that the contract form does not includes the information about the almond flour of being gluten free.
Conclusion
The almond flour being gluten free is the term for the given contract
To ascertain whether there is presence of an implied term between the cake order contract enacted between Mikaela and customer (Dan and Jacob).
As the name clearly reflects, implied terms are in contrast with the express terms which ae clearly mentioned and hence not subject to much debate regarding their presence. Implies terms can be present mainly on the basis of custom or through the orders of the court. A key aspect in this regard is the arising of implied terms on account of underlying relationships shared by the parties under common law provisions. This is particularly observed in commercial transactions where the party needs to perform contractual duties in a manner which is not harmful to the other party as outlined in the Liverpool City Council v Irwincase.
In the given case, Dan & Jacob played an order for the cake with Mikaela. Due to customer having coeliac disease, the appropriate material to be used in the case is gluten free flour. However, no such term has been explicitly mentioned by either of the parties. Thus, a key question which surfaces is whether the customer’s disease was known to Mikaela or not. The usage of gluten free flour for the preparation of cake clearly indicates that Mikaela knew about the disease and hence complied with the implied term that arises on account of the product provider taking the requisite measures to avoid any harm to the consumer.
Conclusion
The above discussion clearly indicates that the usage of gluten free flour is clearly an implied term for the contract under consideration.
The major concern is to take the facts of the case and opine whether the icing colour could be classified as a condition or warranty.
All terms may either be classified as a warranty or condition based on the underlying utility of the clause to the contract. Condition are essentially those terms in the absence of which, it is apparent that there would not have been any contract to begin with as in the absence of these, the contract essentially has no meaning. This has been brought forward in the Poussard v Spiers case which also brings to notice that violation of condition leads to contract termination. On the other hand, warranty while being important to the contract is not so pivotal that in the absence of the same, there would be no contract enacted between the parties. This has been brought forward in the Bettini v Gyecase which also brings to notice that violation of warranty leads to levying of damages on the defaulting party.
Kimiko, the customer has given specifications about the cake that is desired which also includes the icing colour. However, the final product delivered to him does not match the icing colour specified. While the icing is clearly significantly to the cake, but the deviation in the same would not have significant impact on the attributes of the cake. Further, it is highly likely that in the beginning if the cake shop had provided alternate options about the colour of icing, Kimiko would have most likely accepted the same. Thus, it is apparent that icing colour is a warranty.
Conclusion
Based on the above discussion, it would be fair to conclude that icing colour is a warranty.
In light of exclusion clause for breach of warranty, the issue is to determine if Kimiko can still recover damages from Mikaela.
As specified in the Bettini v Gyecase, warranty breach leads to the damages being levied on the party at fault. However, whenever there is exclusion clause for warranty breach present, the buyer or the service provider needs to be proactive and make reasonable efforts to inform or bring to notice of the customer about the exclusion clause. This would provide a choice to the consumer whether he/she decides to still continue the purchase. This is despite the fact that the same may be displayed in the line of sight of the customer who might even casually notice the same. In cases, where the seller fails to fulfil the duty of informing the seller the exclusion clause before making the purchase, it is noteworthy that exclusion clause would not be held as applicable or valid.
Clearly, since the icing on the case does not match the specifications provided by Kimiko, hence there a warranty breach and the customer can recover damages from the cake shop. This is despite the presence of an exclusion clause which in reality the customer managed to glance at the end of placing the order. However, since no attention or focus was given to the sign by the employees who should have ideally indicated to the clause ensuring the importance of the same, hence, the exclusion clause would not be held as enforceable in the given case.
Conclusion
Considering that the cake shop failed in their duty to bring the exclusion clause to the notice of Kimiko, hence it would not be applicable in the given case.
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