LAW 122 Lecture Notes - Lecture 7: Force Majeure, Golden Rule, Contra Proferentem
30 Apr 2018
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March 14, 2018 LAW122 – Lecture 7
1
REVIEW: What Requirements To Have a Contract?
• Intention to create legal relations (family, and business)
• Consensus/Offer and Acceptances (firm offer, and option, invitation to treat)
• Consideration / Seal (consideration, and seal)
Also review Privity → (assign rights over to someone to make them a party, they
only have power within the contract if they are a party to it)
CHAPTER 9: CONTRACTUAL TERMS
TERMS AND CONDITIONS
Statements: Pre-Contractual, and Contractual (aka terms)
• Pre-Contractual vs. Contractual (aka Terms)
• Contractual Terms
o Basic Elements
▪ Skyzone Waiver Example
o Standard Form Agreements
o Boilerplate clauses
Focuses:
1. How communications (verbal and written)
made during the course of negotiations find
their way into a contract
2. Architecture of a contract
3. How contractual terms are interpreted and understood
PRE-CONTRACTUAL STATEMENTS
Negligent Misrepresentation
• Statement made to party
• Party making statement knows Party receiving Statement will rely on it
• Party relying on statement acting reasonably
• Party making statement is careless, reckless or cavalier in the truth of the statement
• Receiving Party incurs damage due to reasonable reliance on statement
find more resources at oneclass.com
find more resources at oneclass.com
March 14, 2018 LAW122 – Lecture 7
2
Objective Test: Would a reasonable person have thought that the parties meant this to be a term
of the K?
TERMS AND CONDITIONS (T&Cs)
Contractual Terms
• Legal Purpose
o Document Title; Document Purpose; Recitals
• Parties
• Material (Terms And Conditions)
o Description of Item/Equipment
o Price
o Consideration
o Disclosures
o Delivery & Risk of Loss
• Standard or Boilerplate
o Warranty
o Effective Date; Expiration Date
o Remedies
o Applicable Laws
o Confidentiality
o Force Majeure
Issue with Express Terms: Whose Interpretation?
Words have multiple meanings…
• Literal approach (golden rule)
o words are given their plain and ordinary meaning
• Contextual approach
o intentions and surrounding circumstances considered
• Golden rule
o words given ordinary meaning unless result is absurdity
• contra proferentem
o ambiguities interpreted against person who wrote the clause
Issue with Express Terms: Implied Term
• A contract may also contain implied terms
o Express terms may not fully reflect intention of parties
o Parties remaining intentions may be implied by law
▪ Common law (implied by court)
▪ Statutory law (implied by statute)
Standard Form Agreement Terms (Parking, Skiing, Zip-Lining)
• Standard Form Agreement = Mass-produced documents (“take-it-or-leave-it”)
• No Power of negotiation
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Intention to create legal relations (family, and business: consensus/offer and acceptances (firm offer, and option, invitation to treat, consideration / seal (consideration, and seal) Also review privity (assign rights over to someone to make them a party, they only have power within the contract if they are a party to it) Statements: pre-contractual, and contractual (aka terms: pre-contractual vs. Contractual (aka terms: contractual terms, basic elements, skyzone waiver example, standard form agreements, boilerplate clauses. Focuses: how communications (verbal and written) made during the course of negotiations find their way into a contract, architecture of a contract, how contractual terms are interpreted and understood. Standard form agreement terms (parking, skiing, zip-lining: standard form agreement = mass-produced documents ( take-it-or-leave-it , no power of negotiation. Standard form agreement (contracts) signed: signature is proof of assent to terms, signer bound even if document not read, signer bound even if terms not understood, possible exception: if no reasonable chance to read, e. g. customer rushed.
