contract law need help

Hi this is my first time in asking for help, for my assessment.

i would be happy if someone could give me some advice on the following question: "the use of innominate terms has resulted in certainly giving way to flexibility". i have to explain this statement using decided cases to illustrate the points i make. please help :hmmmm:

thanks

Reply 1

JH08

12

leed

Hi this is my first time in asking for help, for my assessment.

i would be happy if someone could give me some advice on the following question: "the use of innominate terms has resulted in certainly giving way to flexibility". i have to explain this statement using decided cases to illustrate the points i make. please help :hmmmm:

thanks

I would say it certainly has allowed flexibiity to prevail over certainty. When judges could only decide that a contract clause was either a warranty or a condition, it lead to all sorts of strange and unfair cases.

Hong Kong Fir Shipping Co Ltd -v- Kawasaki Kisen Kaisha Ltd 1962 was the first case to consider an innominate term. Lord Diplock said "all that can be predicted is that some breaches will, and others will not, give rise to an event which will deprive the partynot in default of substantially the whole benefit which it was intended that he should obtainfrom contract: and the legal consequences... unless expressly provided for expressly in the contract, depend on the nature of the event to which the breach gives rise and do not follow automatically from a prior classification as a "condition" or a "warranty""

An example of where uncertainty has come from the use of innominate terms can be found in the case The Hansa Nord 1976 - (goods were used for their original purpose, there was no breach serious enough to justify repudiation, therefore only damages were appropriate).

Unequal bargaining strength, as found in Reardon Smith Line Ltd -v- Hansen-Tangen 1976, is another area where innominate terms are useful. This case found that the breach was only technical, and therefore only a warranty and could not lead to repudiation.

It seems that whilst innominate terms have lead to uncertainity and a lack of predictability, the flexibility is good in order to prevent unjust outcomes and to allow each case to be addressed firmly on its merits rather than just dividing terms in to two categories.