Question:

Discuss about the Significant And Impactful Terms Of Contract.

1. Among the various term of contract warranty is mentionable one. A warranty refers to a promise or assurance in a contract which if breached by either party may result in making the aggrieved party claim for the caused damages. In other words, warranty as a term of contract implies a promise or guarantee with the help of which assurance is provided by one party to the other involved party that the mentioned conditions or facts are true in nature [1]. On the part of the aggrieved party, irrespective of materiality factual guarantee can be enforced with the help of which legal remedy can be availed by the aggrieved party when it can be established that the made promise is not true in nature. Warranty, as a contract term can be further classified into express warranty and implied warranty. In the particular case of Peter, express warranty is more relevant which referrers to the promise the assurance made regarding the product by the seller with live up

   On the basis of the above discussed aspect, it can be mentioned that the statement that OFFICE PRO X9 is the best chair in the market and/ it is an amazing chair can be considered as a term of the contract i.e. express warranty between Peter as the buyer and the seller which was stated by Samantha who assisted Peter at Forever Furniture. It is due to the fact that, it is with the help of the terms of the contract that OFFICE PRO X9 is the best chair in the market and/ it is an amazing chair Samantha assured or promised Peter the mentioned facts are true in nature i.e. the particular product is the best in the market to meet his purpose of buying [2]. In addition to this, it is the reliance of Peter on the particular term of the contract basing upon which he decided to buy OFFICE PRO X9. On the basis of the above discussed facts, it can be stated that statements like OFFICE PRO X9 is the best chair in the market and/ it is an amazing chair can be considered as the term of the contract i.e. express warranty. To mention the scenario of Peter in a specific manner, sales representatives may unintentionally with the help of inflated or careless statements or conduct or even by their silence to the inquiry of customers may create warranties as it was observed in case of Peter. In his case, Samantha due to inflating her sales talks to convince Peter to buy the product made statements. On the basis of which it can be considered as a terms of contract i.e. unintended warranties. In order to establish the above discussed fact the case of Ford Motor v. Lemieux 1967; Grady 1983 can be mentioned[3]. In the particular case, an advertising brochure of Ford truck which depicted the picture of the truck off-road driving on mountains, ditches and streams used by the sales person to convince the buyer. Due to the same reason, when the buyer faced mechanical problems, the company was held liable for breach of warranty, though it was not the intention. In case of Peter as well, it can be observed that when such promises regarding the product were made by Samantha as inflated statement resulting in the creation of unintended warranties as the term of contract.

1. As already stated there are different types of terms of contract. Among the various terms of contract one of the significant and impactful terms of contract is express terms. Express terms of a contract as the name suggests, are those terms of a contract which are clearly and profoundly mentioned and specifically agreed between the parties involved in the agreement [4]. Express terms can be mentioned verbally as well as in writing in an agreement. The only essential requirement in case of express terms is the consent on the part of the involved parties in a contract.      

   On the basis of the above discussed facts it can be mentioned that the term specifying that OFFICE PRO X9 is effective in providing required lower-back support to Peter, which would allow Peter to work comfortably the entire day, can be considered as an express term of contract. If the particular scenario of Peter is analyzed it can be observed that, in the process of buying the chair, Peter has clearly specific his terms for the purpose of buying the chair which is sufficient back support [5]. On acknowledging and accepting his term, Samantha provides him with OFFICE PRO X9. This clearly reflects that it is a term of contract, as it was clearly mentioned by Peter that in order to buy the particular product, the particular terms on the part of Peter i.e. requirement of sufficient lower back support which was mentioned by him verbally is needed. In addition to it, Samantha was aware of the term mentioned by Peter and on agreeing upon the term she provided him with the particular product making the term- OFFICE PRO X9 is effective in providing required lower-back support, a term of contract. However, in this context a complication may arise due to the specification of the statement by Peter verbally. It is due to the fact that terms which are mentioned verbally during negotiations prior the conclusion of the contract and it is not mentioned when the contract is put down in writing, such terms are usually considered as representation. It is due to the fact that, as the term is not mentioned in the written agreement it is assumed that on the part of the involved parties the statement is not viewed as important [6]. In case of Peter as well it can be observed that the particular term was mentioned during negations prior the conclusion of the contract, which may end up in considering the particular statement as representation rather than a term of contract. However, there are certain other factors which are also taken into consideration in such scenario, i.e. strength of statement and importance of the statement which in case of Peter can be observed that, the term was considered to be vital and integral aspect in buying the product. From this context the particular statement will be considered as term of contract.                                 

1. The term that OFFICE PRO X9 is effective in providing required lower-back support to Peter is express term of contract. Express term of a contract refers to those contractual terms which are clearly and specifically mentioned and agreed up, on the part of the involved parties. This particular term of contract can be in both oral as well as written form [7]. The aspect of prime importance in the case of express terms is it has to be agreed upon on the part of the involved parties in the contract.

   In case of Peter, it can be observed that the particular term i.e. the need of sufficient lower-back support has been clearly mentioned by him, regarding which Samantha was aware and agreeing to it she provided him with the particular product [8]. Thus on the basis of the above discussed fact, it can be stated that the particular term that OFFICE PRO X9 is effective in providing required lower-back support to Peter which would allow him to work comfortably the entire day is express term of contract. The reason being it was clearly motioned by Peter that it was the pre-condition for buying the product which was agreed upon by Samantha. 

1. The presence of the exclusion clause under clause 10 of the contact between Peter and Forever Furniture will not prevent him from suing Forever Furniture due to breach of contract term. It is due to the fact that, clause 10 of the contract between Peter and Forever Furniture provides protection to the company for the impact of breach of warranty under their agreement. The warranty in the agreement was the term that OFFICE PRO X9 is the best of the market and/ an amazing chair [9]. It was clearly breached by Forever Furniture, as the product failed to met the purpose of Peter and thus failed in keeping the promise resulting in breach of warranty. However, under this term of the contract Peter cannot sue OFFICE PRO X9.

   This does prevent Peter form suing Forever Furniture for breach of contract terms due to the lack of performance of the product in meeting the need of Peter. It is due to the fact that the need of the particular product to be effective in providing support in order to help Peter work for the entire day was a pre-condition for buying the product [10]. The statement had strength and significance associated with it, making it a term of contract, to which Samantha agreed to, making it an express term of the contract. As the express term of the contract was breached by Forever Furniture, because OFFICE PRO X9 failed in providing him with required lower-back support to work comfortably the entire day and caused his pain to exasperate, he can sue Forever Furniture for breach of contract, having not impact of exclusion clause on suing the company by Peter. 

References

Beale, H. G, W. D Bishop and M. P Furmston, Contract (Oxford University Press, 2008)

Boedecker, Karl A., Fred W. Morgan and Jeffrey J. Stoltman, “Legal Dimensions Of Salespersons’ Statements: A Review And Managerial Suggestions” (1991) 55(1) Journal of Marketing

Carter, J. W, Breach Of Contract (LexisNexis Butterworths, 2011)

Carter, J. W, Contract Law In Australia (LexisNexis Butterworths, 2013)

Duggan, Michael, Wrongful Dismissal & Breach Of Contract (EMIS Professional Pub., 2007)

Espenschied, Lenne Eidson and Lenne Eidson Espenschied, Contract Drafting (American Bar Association, 2016)

Express And Implied Terms Of The Contract (2017) Lawhandbook <https://www.lawhandbook.sa.gov.au/ch18s02s01.php>

Kuhnel-Fitchen, Kathrin and Tracey Hough, Optimize Contract Law (Taylor and Francis, 2014)

Stannard, John E and David Capper, Termination For Breach Of Contract (Oxford Univ. Press, 2014)

Taylor, Richard and Damian Taylor, Contract Law (Oxford University Press, 2017)