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Negotiating with the best on the market: not all statements of negotiation are contractual

   

Added on  2019-11-19

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Question 1No, “OFFICE PRO X9 is an amazing chair, and the best on the market” was not a term ofthis contract. Not all statements of negotiation are deemed to be contractual terms. Some could be a trader’s puff which is mere boast, often meant to advertise a product and the law does not expect the customers to take such statements as true.1 The other one is a representation. These arepre-contractual statements which could convert into a term depending on the actions of the client.2 If a representation turns out to be untrue, and that statement changed the position of the customer, that representation would result in a term hence remedies would be awarded if the untrue statement caused harm to the client. Terms are actual statements that go to the root of the contract. Failure to comply with terms results to a breach.In distinguishing these statements, the court employs four factors. One of them is the importance of such statement to the contracting parties.3 Where the statement acts as important tothe decision of either of the parties, that statement becomes a contractual term. A case of this is the situation of Ecay v Godfrey [1947].4The claimant purchased a boat from the defendant. The claimant assured that the boat was fine though he recommended an examination. Later the review discovered that the boat had some faults. The court ruled that the defendant statement wasa representation and the claimant was supposed to rely on examinations. The next distinguishing factor is the time duration between the pre-contractual statement and the contract. Long interval means the statement was representation while short interval means the statement was a term. A case if this scenario is Routledge v Mckay.5 On 23rd October, the defendant told the claimant that the bike was a 1942 model when it was a 1942 model. They 1 Richard J. Hunter, "Compensation For Bystander Injuries In Strict Products Liability" (2016) 3(10) Advances in Social Sciences Research Journal <http://10.14738/assrj.310.2239.>.2 Tracey Hough and Kathrin Kühnel-Fitchen, Optimize Contract Law (Taylor & Francis, 2016).3 Jill Poole, Casebook On Contract Law (Oxford University Press, 12th ed, 2014).4 Ecay v Godfrey [1947] 80 Lloyds Rep 2865 1 WLR 615 Court of Appeal

signed an agreement on 30th which didn’t refer the motorbike date. The court ruled that the “1942 model” statement was a pre-contractual statement, but not a term. The of the parole evidence rule. In this rule, parties cannot alter a written contract with oral statements.6 So where there is a documentation of an oral statement, that statement becomes a contractual term. The last one is the parties’ expertise. When one party that has specialist skills makes the statement, and the other party relies on that statement, then the court is more likely to take that as a contractual term.7 Following these explanations, “OFFICE PRO X9 is an amazing chair and/or the best on the market” fits to be a sales puff or a trader’s exaggerated opinion. Question 2: Yes, it was a term that the OFFICE PRO X9 provides sufficient lower-back support to allow Peter to work the whole day comfortably. As explained in question one, anything said by the contracting party which has special knowledge is probably a term.8 The main reason is that the customer will be using that party’s statement to decide on whether to buy the item or to leaveit. Notably, this statement can happen in two ways. One is a direct statement from the dealer.The other one is a response to the question asked by the customer with the intention of seeking clarification or making the dealer understand what the customer wants. This facts in this case are similar to the case of Dick Bentley Productions v. Harold Smith Motors [1965]9. In this case, a customer (Claimant) asked the dealer (Defendant) to bring a 'stable Bentley car'. The dealer brought a car claiming that it had done low mileage since the replacement of the engine and gearbox. However, this turned out to be untrue. The court found that the statement of the mileage was a term. The fact is when the customer asks the dealer to provide something with 6 "Contractual Interpretation In Indian Evidence Act Jurisdictions: Compatibility With Modern Contextual Approach?" (2013) 13(1) Oxford University Commonwealth Law Journal7 Margaret Castles, "Expanding Justice Access In Australia" (2016) 41(2) Alternative Law Journal.8 Richard Stone, Text, Cases And Materials On Contract Law (Routledge, 2nd ed, 2014).91 WLR 623

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