Express terms — practice questions

1. Identify the Express Term and its Breach: The express term is the obligation to perform during the season. S's failure to perform for the first six nights constitutes a breach of this term.

2. Classify the Term: The central issue is whether this term is a condition or a warranty. The classification determines whether P was entitled to dismiss S.

• A condition is a term so important that its breach goes to the root of the contract. Breach allows for termination (Poussard v Spiers).
• A warranty is a less important term. Breach only entitles the innocent party to damages (Bettini v Gye).

3. Apply Case Law:

• In Poussard v Spiers, a lead singer's failure to appear on the opening night was held to be a breach of condition. The opening night was critical to the success of the production.
• In Bettini v Gye, a singer's failure to attend preliminary rehearsals was only a breach of warranty because it did not prevent the main purpose of the contract from being fulfilled.

4. Analysis: S's failure to perform for the first six nights, including the crucial opening night, is analogous to Poussard v Spiers. The presence of the lead singer at the start of the run is fundamental to the contract's purpose. This is not a minor issue like missing rehearsals.

5. Conclusion: The term requiring performance from the start of the season is a condition. By breaching this condition, S committed a repudiatory breach. P was therefore legally entitled to terminate the contract and dismiss S. S's claim for wrongful dismissal is likely to fail.

1. Identify the Legal Issue: The issue is whether the onerous late fee of £200 per day (Clause 8) was validly incorporated into the contract between Pixel Perfect and ScanFast Ltd.

2. State the Relevant Law on Incorporation by Notice:

• For a term to be incorporated by notice, reasonable steps must be taken to bring it to the other party's attention before or at the time the contract is formed (Olley v Marlborough Court Hotel).
• The more unusual or onerous a term is, the greater the degree of notice required. The party seeking to rely on it must show they took special steps to highlight it (the 'red hand rule' from Spurling v Bradshaw, applied in Interfoto Picture Library v Stiletto Visual Programmes).

3. Apply the Law to the Facts:

• Timing of Notice: The contract was formed over the phone. The terms on the delivery note were only presented to Pixel Perfect after the contract was concluded. This is post-contractual notice and is therefore ineffective. The signature on the delivery note might be argued to incorporate the terms, but it could be seen as merely acknowledging receipt of the goods, not assenting to new contractual terms.
• Onerous Term: A fee of £200 per day is likely to be considered onerous and unusual, far exceeding any actual loss ScanFast Ltd might suffer. The total charge is £1,000 for a 5-day delay.
• Reasonable Steps: Following Interfoto, where a high daily fee for late return of photo transparencies was not incorporated, ScanFast Ltd should have taken explicit steps to draw Pixel Perfect's attention to Clause 8 during the phone call when the contract was made. Simply printing it on the back of a post-contractual delivery note is insufficient for such a punitive term.

4. Conclusion: Clause 8 is likely not incorporated into the contract. The notice was given too late, and the term is onerous, requiring a higher degree of notice than was provided. Pixel Perfect is not bound to pay the £1,000 penalty. ScanFast Ltd may be entitled to claim damages for the late return, but this would be a much smaller sum based on their actual loss (e.g., the standard rental rate for the 5 days), not the punitive £200 per day.