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Chapter

Cover Complete Contract Law

6. The Terms of the Contract  

This chapter focuses on the terms of the contract. Such terms can be expressed in writing or in oral statements. In addition, some terms can be implied into a contract by legislation or the courts. As a result, contracts can be in the form of a written document, an oral agreement, or even a combination of written terms and oral statements and all three can contain implied terms. The chapter then looks at how terms can be implied into contracts. It also explores the law on express terms. In the context of what has been agreed, there are two main types of dispute. One type of dispute relates to the existence of a term that a party claims has been breached. The other type of dispute over what has been agreed relates to the meaning of the terms. In such cases, the meaning of the disputed term will determine whether it has been breached. That requires the courts to interpret the term to reflect the parties’ apparent intentions.

Chapter

Cover Poole's Textbook on Contract Law

5. Content of the contract and principles of interpretation  

Robert Merkin, Séverine Saintier, and Jill Poole

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. This chapter explores how the terms of the parties’ agreement (that is, the contractual promise to be performed) are identified and how the courts interpret the meaning of those terms. It considers the status of statements made prior to the conclusion of the contract (as terms or representations) and why this matters. The parol evidence rule applies where the contract is written and provides that the writing represents the entire contract. This definition is flawed, however, because it allows the rule to be sidestepped by defining the contract as partly written and partly oral. Alternatively, an oral term can take effect as a collateral contract, which is separate to any written contract to which the parol evidence rule applies. The effect of the parol evidence rules can be achieved by incorporating an entire agreement clause. This chapter also considers the effect and impact of a no oral modification clause (or NOM). This chapter examines methods of achieving incorporation of terms such as signature, reasonable notice (or a higher standard of notice if the term is onerous or unusual), consistent course of dealing and common knowledge of the parties. In addition to the express terms, there may be terms implied by custom, by courts or by statute. Finally, the chapter considers the principles on which contracts are interpreted including the relevance, or otherwise, of pre-contractual negotiations.

Chapter

Cover Poole's Textbook on Contract Law

5. Content of the contract and principles of interpretation  

Robert Merkin KC, Séverine Saintier, and Jill Poole

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. This chapter explores how the terms of the parties’ agreement (that is, the contractual promise to be performed) are identified and how the courts interpret the meaning of those terms. It considers the status of statements made prior to the conclusion of the contract (as terms or representations) and why this matters. The parol evidence rule applies where the contract is written and provides that the writing represents the entire contract. This definition is flawed, however, because it allows the rule to be sidestepped by defining the contract as partly written and partly oral. Alternatively, an oral term can take effect as a collateral contract, which is separate to any written contract to which the parol evidence rule applies. The effect of the parol evidence rules can be achieved by incorporating an entire agreement clause. This chapter also considers the effect and impact of a no oral modification clause (or NOM). This chapter examines methods of achieving incorporation of terms such as signature, reasonable notice (or a higher standard of notice if the term is onerous or unusual), consistent course of dealing and common knowledge of the parties. In addition to the express terms, there may be terms implied by custom, by courts or by statute. Finally, the chapter considers the principles on which contracts are interpreted including the relevance, or otherwise, of pre-contractual negotiations.