Express terms — common mistakes

When answering a problem question on express terms, first identify how the term was incorporated (signature, notice, or course of dealing). Only then should you classify the term as a condition, warranty, or innominate term to determine the available remedy.

Not necessarily. The courts look at the substance over the form. If the parties use the label 'condition' but the term is trivial or its application would lead to an unreasonable result, the court may classify it as a warranty or innominate term. The case of Schuler AG v Wickman Machine Tool Sales [1974] illustrates that the court will consider the overall contract and the objective intention of the parties, rather than being bound by the label used.

No. For a term to be successfully incorporated by notice, the notice must be given before or at the time of contracting. In Olley v Marlborough Court Hotel [1949], a notice containing an exclusion clause in a hotel room was held to be ineffective because the contract was formed at the reception desk before the guest saw the notice. Any new term introduced after formation is not part of the original contract unless a new contract is formed.

No. A distinction is made between a 'term' and a 'mere representation'. A term is a promise that becomes part of the contract, and its breach leads to a claim for breach of contract. A representation is a statement that induces the contract but is not part of it; if false, it leads to a claim for misrepresentation. Courts consider factors like the importance of the statement (Bannerman v White), the time it was made, and whether the maker had special skill or knowledge (Dick Bentley Productions v Harold Smith).