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Contractual Terms

Contractual terms are distinguished from mere representations, not intended to be promises. In other words, no liability can arise if statement was made without any intention to form any kind of contractual relationship.
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Condition
Last updated: 21-Jun-2015

Blackburn J said in Bettini v Gye (1876) 1 Q.B.D. 183, at p.187:

Parties may think some matter, apparently of very little importance, essential; and if they sufficiently express an intention to make the literal fulfilment of such a thing a condition precedent, it will be one

Bentsen v Taylor, Sons & Co (2), [1893] 2 QB 274, per Bowen LJ at p 281:

There is no way of deciding that question except by looking at the contract in the light of the surrounding circumstances, and then making up one’s mind whether the intention of the parties, as gathered from the instrument itself, will best be carried out by treating the promise as a warranty sounding only in damages, or as a condition precedent by the failure to perform which the other party is relieved of his liability.

Wallace v Pratt [1910] 2 KB 1003 per Mr. Justice Fletcher Moulton (affirmed by the House of Lords on appeal in [1911] AC 394) who said that conditions are terms:

which go so directly to the substance of the contract or, in other words, are so essential to its very nature that their non-performance may fairly be considered by the other party as a substantial failure to perform the contract at all.

Per Lord Diplock in Photo Production Ltd v Securicor Transport Ltd [1980] 1 All ER 556 at p. 557:

‘breach of condition’ should be confined to the situation where the contracting parties have agreed, whether by express words or by implication of law, that any failure by one party to perform a particular primary obligation irrespective of the gravity of the event that has in fact resulted from the breach shall entitle the other party to elect to put an end to all primary obligations of both parties remaining unperformed.

Per Lord Roskill in Bunge Corpn v Tradax SA [1981] 2 All ER 513 at p. 551:

In short, while recognising the modern approach and not being overready to construe terms as conditions unless the contract clearly requires the court so to do, none the less the basic principles of construction for determining whether or not a particular term is a condition remain as before, always bearing in mind on the one hand the need for certainty and on the other the desirability of not, when legitimate, allowing rescission where the breach complained of is highly technical and where damages would clearly be an adequate remedy


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