公司法和商法(双语)讲义第9章CorporateandBusinessLawChapter9

1、公司法和商法（双语）讲义 第9章Corporate and Business Law Chapter 99 Terms of the contract1 Certainty of terms1.1 Once a contract has been made its important to ascertain its conTenetcontent of a contract is its terms. N.B. mere representations made pre contract are not part of the contractual terms.OverviewTYPES

2、OF TERMSConditionsWarrantiesInnominate terms2 Conditions and warranties2.1 A condition is a core element of a contract. Itfisndamental to the existence of the contract.Breach of a condition entitles the injured party to:(i) repudiate the contract (ie. treat contract as discharged); and(ii) claim res

3、cission which would enable him to receive property transferred; and(iii) claim damages: Poussard v. Spiers.2.2 A warranty is "collateral to the main purpose of the contract". It is not essential.Breach of a warranty entitles the injured party to claim damages Bieyini v. Gye.2.3 Innominate

4、terms: is a term which cannot be categorised at the start of the contract. The court will look at the effect of the breacHong Kong Fir Shipping Company v Kawasaki Kisen Kaisha.3OverviewTERMSImpliedExpress3 Express and implied terms3.1 An express term is one which has beenlearly stated orally or in w

5、riting, or may be by reference at the time of contract: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 amended; This states that it will be a condition of the contract that (inter alia);(i) the seller had title to the go

6、ods,(ii) the goods are of satisfactory quality and fit for purpose,(iii) the goods correspond with their description.(b) It is necessary for the efficacy of the particular contracte Moorcocko r(c) It is customary through trade us age. Terms implied by custom cannot override the express terms of an a

7、greement.(d) Also where theparties have had previous dealing on the basis of an exclusion clause, that clause may be included in later contracts.OverviewFORMALITIESIn writingBy deedOther4 FormalitiesCertain contracts have to be made in a formal way:4.1 Some contracts must be in writing:(a) consumer

8、credit agreements(b) transfer of company shares(c) money lending contracts(d) contract for the sale or other disposition of land e.g. leases(MP)A'894.2 Some contracts do not have to be in writing. But written evidence must be available to enable an action to be brought. eg. Contract of guarantee

9、.4.3 Certain contracts must be executed as a Deed (and are called speciality contracts):(a) Gratuitous promises: Deeds of Covenant(b) Transfers of a legal estate in land4.4 Contracts of employment need not be in writing or evidenced in writing but the main details must be outlined.5 Terms in restrai

10、nt of trade5.1 Contracts or contract terms in restraint of trade prima facie void but will be upheld if there is a legitimate proprietary interest to protect and the term is reasonable between the parties and for the community.Legitimate Proprietary Interest5.2 The following are legitimate proprieta

11、ry interests:-(a) Trade Secrets.(b) Business Goodwill.5.3 It is not legitimate to restrain the use of personal skills.Reasonableness5.4 The clause must only be sufficiently wide to protect the legitimate proprietary interest and no wider.5.5 Factors to consider:(a) Area.(b) Duration.(c) Activity (i.e. the drafting must restrict the specific activity and no other).5.6 The burden of proof is on the claimant.The bargaining position of the parties is taken into account.Severance5.7 The court will not rewrite a restraint which is too wideOffice Angels Ltd v Rainer-Thomas and O Connor5.8 (a)