1、公司法和商法（雙語）講義 第9章Corporate and Business Law Chapter 99 Terms of the con tract1 Certai nty of terms1.1 Once a con tract has bee n made its importa nt to ascerta in its conTnEtc ontent of a con tract isits terms. N.B. mere represe ntati ons made pre con tract are not part of the con tractual terms.Over

2、viewTYPES OF TERMSCon diti onsWarra ntiesInnomin ateterms2 Con diti ons and warra nties2.1 A con diti on is a core eleme nt of a con tract. Itfisndame ntal to the existe nee of the con tract.Breach of a con diti on en titles the injured party to:(i) repudiate the con tract (ie. treat con tract as di

3、scharged); and(ii) claim rescissi on which would en able him to receive property tran sferred; and(iii) claim damages: Poussard v. Spiers.2.2 A warra nty is "collateral to the main purpose of the con tract". It is n ot esse ntial.Breach of a warranty en titles the injured party to claim da

4、mages Bnlyini v. Gye.2.3 Innomin ate terms: is a term which cannot be categorised at the start of the con tract. The court willlook at the effect of the breacH ong Kong Fir Shipp ing Compa ny v Kawasaki Kise n Kaisha.5OverviewTERMSExpressImplied3 Express and implied terms3.1 An express term is one w

5、hich has beeclearly stated orally or in writing, or may be by reference atthe time of con tract:3.2 An implied term is one which the court will allow because:(a) It has to as the term is statutory (eSale of Goods Act 1979as ame nded； This states that it will be a con diti on of the con tract that (i

6、 nter alia);(i) the seller had title to the goods,(ii) the goods are of satisfactory quality and fit for purpose,(iii) the goods corresp ond with their descripti on.(b) It is n ecessary for the efficacy of the particular con tracte Moorcockor(c) It is customary through trade us age. Terms implied by

7、 custom cannot override the express terms of an agreeme nt.(d) Also where theparties have had previous deali ng on the basis of an exclusi on clause, that clause may be in cluded in later con tracts.OverviewFORMALITIESIn writi ngBy deedOther4 FormalitiesCerta in con tracts have to be made in a forma

8、l way:4.1Some con tracts must be in writi ng:(a) con sumer credit agreeme nts(b) tran sfer of compa ny shares(c) money lending con tracts(d) con tract for the sale or other dispositi on of land e.g. leases(MP)A'894.2Some con tracts do not have to be in writ ing. But written evide nce must be ava

9、ilable to en able an action to be brought. eg. Con tract of guara ntee.4.3 Certain con tracts must be executed as a Deed (and are called speciality con tracts):(a) Gratuitous promises: Deeds of Cove nant(b) Tran sfers of a legal estate in land4.4 Con tracts of employme nt n eed not be in writi ng or

10、 evide need in writ ing but the main details must be outl in ed.5 Terms in restrai nt of trade5.1 Con tracts or con tract terms in restrai nt of trade prima facie void but will be upheld if there is a legitimate proprietary in terest to protect and the term is reas on able betwee n the parties and f

11、or the com munity.Legitimate Proprietary In terest5.2 The follow ing are legitimate proprietary in terests:-(a) Trade Secrets.(b) Busin ess Goodwill.5.3 It is no t legitimate to restra in the use of pers onal skills.Reas on able ness5.4 The clause must only be sufficie ntly wide to protect the legit

12、imate proprietary in terest and no wider.5.5 Factors to con sider:(a) Area.(b) Duratio n.(c) Activity (i.e. the draft ing must restrict the specific activity and no other).5.6 The burde n of proof is on the claima nt.The barga ining positi on of the parties is take n into acco unt.Severa nee5.7 The court will not rewrite a restrai nt which is too wideOffice An gels Ltd v Rain er-Thomas and O Connor5.8 (a