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    Hey Guys I need a hand, basically I've done about 400 words of this essay already but got a little stuck as to how much more I can really put in there without repeating myself and talking crap...

    This is the title.


    'In the past the courts maintained that the distinction between conditions and warranties was to be made without considering the actual results of the breach, and was to be determined on the basis of the relative importance of the term in the context of the contract as a whole at the date when it was drafted.'

    Jill Poole Textbook on Contract Law (Oxford University Press 2010) p314

    Explain the relevance of this statement, and discuss to what extent this is still the approach in the courts today.

    Any help at all would be appreciated!!
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    (Original post by EVOLUTIONinc)
    Hey Guys I need a hand, basically I've done about 400 words of this essay already but got a little stuck as to how much more I can really put in there without repeating myself and talking crap...

    This is the title.


    'In the past the courts maintained that the distinction between conditions and warranties was to be made without considering the actual results of the breach, and was to be determined on the basis of the relative importance of the term in the context of the contract as a whole at the date when it was drafted.'

    Jill Poole Textbook on Contract Law (Oxford University Press 2010) p314

    Explain the relevance of this statement, and discuss to what extent this is still the approach in the courts today.

    Any help at all would be appreciated!!
    What have you got so far? Have you looked at the statutory framework and case law on innominate terms?
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    I suppose the first question to ask is, at a basic level do you understand the difference between conditions and warranties? Apologies if what I'm about to summarise is all very simple and boring to you.

    Conditions- terms so vital to a contract that breach of them would entitle the other party to terminate the contract/consider themselves discharged.

    Warranties- less important terms, which when breached, do not entitle the innocent party to terminate, but would entitle them to damages.

    The distinction is of some importance because, particularly in commercial disputes, parties regularly commit all sorts of breaches of contract. Businessmen, therefore, like to know exactly when they can walk away from a contract or whether they are merely entitled to sue.

    Some terms are so obviously important that they must be conditions. Similarly, some terms are so obviously less intrinsic to a contract, that they must be warranties. However, unfortunately, as is often the case in law, things are not always that simple. Some terms, depending on the circumstances, can become very important or they may remain not important at all! These are known as innominate terms- and this is what jjarvis is talking about.

    For example- I contract with you to hire a ship in a charterparty. One of the terms specifies (unfortunately rather vaguely) that you, as the shipowner "shall deliver the ship to AdamTJ in good condition". Now, say you hand the ship over to me and it requires a few licks of paint but essentially it's seaworthy. The damage only needs a few minor repairs. Is that a breach of contract? Well probably, because the ship's not in good condition. Is it a breach of such fundamental importance that I should be able to terminate the contract? Well probably not, so in this context the term is a warranty.

    Situation no 2- you hand a ship over to me and the engine is broken, the rudder has snapped off, and there are a whole load of mechanical flaws. Aside from the fact that this is probably a breach of several implied statutory terms, is this an express breach of our contract? Definitely! Is it a breach so fundamental that it might entitle me to walk away and repudiate the contract? Well it's certainly very arguable! In this scenario, the term may well be a condition.

    Can you see how our hypothetical term- that "the ship be delivered in good condition", can be construed as either a warranty or a condition? Well it's a classic innominate term.

    Poole is saying (and she's right in my opinion) is that what used to happen is that, when the Courts assessed whether an innominate term was a condition or warranty, they would look at the relative importance of the term to the contract as a whole when the contract was drafted. They didn't look at how severe the consequences of the breach were to the innocent party.

    This (she impliedly says) contrasts with the more modern approach, which is to examine the severity of the consequences of the breach to the innocent party when deciding how important the term was to the contract. The worse the consequences of the breach are, the more likely it is to be held that the term was a condition.

    Essentially- you have to discuss whether you believe what she is saying is right, taking into account the case law and statutory frameworks we have, and then discuss what the courts are doing today. You should probably try and argue which approach (i.e. the old or the new) is better for good measure as well. This is still a controversial topic- there is a need to balance certainty of commercial dealings with fairness of transactions. There is also a general presumption underpinning English contract law that commercial parties of equal bargaining power should not be able to wriggle out of contractual obligations without good excuse. Bear this in mind. You should find plenty of academic critique in this area.

    Good luck!
 
 
 
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