A contractual term is "[a]ny provision forming part of a contract" Each term gives rise to a contractual obligation,
breach of which can give rise to litigation. Not all terms are stated expressly and some terms carry less legal gravity as
they are peripheral to the objectives of the contract.
Classification of Term
-Condition or Warranty. Conditions are terms which go to the very root of a contract. Breach of these terms repudiate
the contract,allowing the other party to discharge the contract. A warranty is not so imperative so the contract will subsist
after a breach. Breach of either will give rise to damages.
It is an objective matter of fact whether a term goes to the root of a contract. By way of illustration, an actress' obligation
to perform the opening night of a theatrical production is a condition, whereas a singers obligation to perform during the
first three days of rehearsal is a warranty.
Statute may also declare a term or nature of term to be a condition or warranty; for example the Sale of Goods Act 1979
s15A provides that terms as to title, description, quality and sample (as described in the Act) are conditions save in certain
-Innominate term. Lord Diplock, in Hong Kong Fir Shipping Co. Ltd. v Kawasaki Kisen Kaisha Ltd., created the concept of
an innominate term, breach of which may or not go to the root of the contract depending upon the nature of the breach. Breach
of these terms, as with all terms, will give rise to damages. Whether or not it repudiates the contract depends upon whether
legal benefit of the contract has been removed from the innocent party. Megaw LJ, in 1970, preferred the use of the classic
categorising into condition or warranty due to legal certainty. This was interpreted by the House of Lords as merely restricting
its application in Reardon Smith Line Ltd. v Hansen-Tangen.
Status as a term
Status as a term is important as a party can only take legal action for the non fulfillment of a term as opposed to representations
or mere puffs. Legally speaking only statements that amount to a term create contractual obligations. There are various factor
that a court may take into account in determining the nature of a statement
A Term may either be expressed or implied. An Express term is stated by the parties during negotiation or written in a
contractual document. Implied terms are not stated but nevertheless form a provision of the contract.
-Terms may be implied due to the facts of the preceedings by which the contract was formed. The Privy Council established
a five stage test in BP Refinery Western Port v. Shire of Hastings. to determine situations where the facts of a case may
imply terms (this only applies to formal contracts in Australia).
Some jurisdictions, notably Australia and Israel, imply a term of good faith into contracts. A final way in which terms
may be implied due to fact is through a previous course of dealing or common trade practice.
-Terms may also be implied in law.
These are terms that have been implied into standardised relationships.
-Liverpool City Council v. Irwin established a term to be implied into all contracts between tenant and landlord that
the landlord is obliged to keep the common areas in a reasonable state of repair.
-Wong Mee Wan v Kwan Kin Travel Services Ltd. established that when a tour operator contracts to for the sale of goods.
The most important legislation under United Kingdom law is the Sale of Goods Act 1979, the Consumer Protection (Distance Selling)
Regulations 2000 and the Supply of Goods and Services Act 1982 which imply terms into all contracts whereby goods are sold
or services provided.
These terms will be implied into all contracts of the same nature as a matter of law.
The rules by which many contracts are governed are provided in specialized statutes that deal with particular subjects.
Most countries, for example, have statutes which deal directly with sale of goods, lease transactions, and trade practices.
For example, most American states have adopted Article 2 of the Uniform Commercial Code, which regulates contracts for the
sale of goods. The most important legislation implying terms under United Kingdom law are the Sale of Goods Act 1979, the
Consumer Protection (Distance Selling) Regulations 2000 and the Supply of Goods and Services Act 1982 which imply terms into
all contracts whereby goods are sold or services provided.