representation 同 terms of contract 的分別

Question

the difference between representation and terms of contract are very ambigious
when giving a case, how could i distinguish it is a case about representation or terms of contract?

Answer 1

representation只是陳述給簽contract的人，在合約內可能沒有寫，空口講
terms of contract ，合約條款，寫明在合約內

terms of contract 就有分

1. Express terms: Conditions and warranties

· Condition – very important term
· Breach of condition – repudiation and claim damages
· Wang Kah-lam v Concord Ltd [1979] (‘manufacture in 1976’ - a condition)

· Warranty – minor term
· Breach of warranty – claim damages only but has to continue to perform the contract.
· Schuler AG v Wickman Machine Tool Sales Ltd [1974] (no. of visit – a warranty)


2. Innominate term
· Remedy depends on the extent of the damage
· Hong Kong Fir Shipping Co Ltd v Kawasaki Kinsen Kaisha Ltd [1962] (unseaworthy)


3. Implied terms

· Previous dealings between the parties
· Hollier v Rambler Motors (AMC) Ltd [1972] (4 transactions over 5 years)

· Business efficacy
· The Moorcock [1889] (a reasonably safe place for mooring)


· Custom and trade usage
· British Crane Hire Corp Ltd v Ipswich Plant Hire Ltd [1974] (hiring business)

· Statutes
· Sale of Goods Ordinance


4. Exclusion clauses

4.1 General
· Exclusion clause, exemption clause, limitation clause
· Yien Yieh Commercial Bank Ltd v Kwai Chung Cold Storage Co Ltd [1989] (effective exclusion clause)

Answer 2

To determine a statment is either representation or terms of contract,It depends on the following factor,

It is a likely to be a represenation rather than a term of the contract if

1)It was made some time before the contract was made
2)the person making it did not have any specialist knowledge of the subject matter of the contract.A specialist is treated as someone whose opinion is deemed to be sound and will be relied upon
3)the person makeing it suggested the other party check its truth or it was the sort of statenebt that is usuakky checked
4)the person to whm the statement was made did not consider it a key part of the contract.

HOPE IT IS WHAT U WANTS~~