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Topic4 - Essay Example

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Terms of a contract are important to understand the intention of the parties to the contract. The terms can be oral or in writing or both which are express terms. Besides, there can be implied terms determined by customs, usage, statutes or case law. Terms discussed prior to making of a contract are not binding on the parties except those that are made in the form of representation inducing a party to enter into contract…
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Download file to see previous pages At first, Sam without mentioning details of how the launch was going to be made, merely quoted @$75 per head for 100 delegates and a venue fee of $ 2500 thus totaling the contract amount as $10,000. Dean was unimpressed and hence declined Sam's offer. It was only after this; Sam mentioned that a famous Chef Yahoo Nim would attend the event and that a special promotional invitation on Oh My Manor's letter head would be prepared and sent by Sam to the 100 delegates three weeks before launch date. Besides, he also promised to use his own influence to ensure attendance. Dean was apparently induced by these statements of Sam and agreed to Sam's price quoted following which he paid an advance $ 3,000 and received the receipt from Sam mentioning only the price and how total sum was arrived at. Hence successful performance of the contract means that the celebrity Chef Yahoo Nim should have prepared the food and attended the function, Sam should have sent the invitation as stipulated and 100 people should have attended by Sam's influence. But none of these happened resulting in poor attendance of 35 people since only 45 invitations were sent. These can not therefore be a mere parol evidence. These are express terms and hence should be taken as collateral contract though made orally. The collateral contract concept is a device to circumvent the Parol Evidence Rule but also as a means of holding that a statement which is not a term of the main contract can be enforced as a collateral contract i.e. collateral warranty. Some of the cases which can be cited in support of this are ESSO PETROLEUM V MARDEN (1976), DE LASALLE V GUILDFORD (1901), RECORD V BELL (1991) and COMMISSION FOR THE NEW TOWNS V COOPER (CA) (1995) (TheLawsite). Hence Sam is bound by these terms and is liable for damages for breach of contract. Dean is not required to pay the balance amount of $7,000 and he can proceed against Sam for damages for his breach of contract since pressure of work is no excuse.
Qn 2
Zander mad it known to Puffy his exact requirements to which Puffy also agreed. Hence the software supplied by Puffy is not in accordance with the terms agreed upon prior to signing of contract Zander signed the contract only on being assured that the software would meet with all the current Government regulatory requirements. But for this he would not have signed the contract. But there is a point against Zander. What Puffy was making was only an opinion and not a condition or representation. She offered him three packages and Zander chose one. It was open to him to verify and then make a purchase. Even though before signing of the contract, Zander insisted, he chose the package at his own risk. If the software package had been a defective one, it would have been a different issue. Hence Puffy is in not breach of contract and consequently Zander is not entitled to refund of the money paid.
Qn No 3
In this case, even though Zander did not read the clause No 53 which avoided any liability whatsoever, he is deemed to have read it due to the explicitly mentioned clause on the website. This is an exclusion clause binding on the acceptor. In its absence, the offeror would have been liable for the non-performance or defective performance. In ...Download file to see next pagesRead More
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