Lecture 5. Express Terms Implied Terms. Introduction to Terms. Puff. Sales talk Not intended to be taken seriously No contractual force. ‘Mere’ Representation. Factual statements Induce entry into contract Not guaranteed by the maker No contractual force
Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at 61:
‘the conclusion a reasonable person in the position of the person to whom the statement was made would have reached’
Two party collateral contract:
A enters into the main contract with B because of a promise made by B in relation to the subject matter of the main contract, or some other inducement.
Three-party collateral contract:
A enters into a contract with C after a statement by B – that statement takes effect as a collateral contract between A and B, the consideration for which is A’s entry into the main contract with C.
JJ Savage & Sons v Blakney (1970) 119 CLR 435:
Must establish three elements:
L’Estrange v Graucob: by signing a document the party indicates an intention to be legally bound by the terms therein, regardless of whether they know what they are.
Toll v Alphapharm: if the party knows the document contains contractual terms and signs, they are bound.
Curtis v Chemical Cleaning and Dyeing Co  1 KB 805: rule in L’Estrange will not apply where the effect of signing is misrepresented by the other party.
Non est factum: ‘this is not my act’ (eg Petelin v Cullen (1975) 132 CLR 355 at 359-360).
Balmain New Ferry Co v Robertson (1906) 4 CLR 379 per Griffith CJ:
(approving Parker v SE Railway)
‘…sufficient for the defendants to prove that they had done what was reasonably sufficient to give the plaintiff notice of the conditions of admittance …’
1. Did the person who received the ticket know that there was writing on it?
2. Did that person know that the ticket referred to terms?
3. Did the party relying on the terms do what was reasonable to bring notice of the existence of the terms?
Course of dealing between the parties must have been:
Henry Kendall v William Lillico  2 AC 31.
J Spurling v Bradshaw  1 WLR 461.
From BP Refinery v Shire of Hastings (1977) 180 CLR 266 at 283:
For a term to be implied, the following conditions must be satisfied:
1. it must be reasonable and equitable;
2. it must be necessary to give business efficacy to the contract;
3. it must be so obvious that it ‘goes without saying’;
4. it must be capable of clear expression;
5. it must not contradict any express term of the contract.
2 step process: