Classification of terms

Firstly there is ‘conditions’ this means that it is a major term of the contract, that goes to the root of the contract. In addition to that the remedies allows the party to have the right to claim damages and terminate the contract although the party may decide to affirm. An example of this is portrayed in Poussard v Spiers [1876] where an actress employed for opera became ill before the show which meant she was unable to perform at the show so she was replaced. Due to this the actress sued for breach of contract due to the replacement, however the court held that due to it being the opening night of the opera being extremely important that her absence amounted to a breach of the contract. This meant the contract could be terminated and the claimant could not sue for damages.

Secondly there are ‘warranties’ which is a minor/subsidiary term that is regarded as ancillary to the main purpose. In this scenario the remedy for the party who has had their contractual agreement breached can sue for damages but cannot terminate the contract. However in terms of insurance contracts it is regarded as a major term due to the fact with all rights appropriate to such a term should a breach occur. An example of this is in the case of Bettini v Gye (1876) where a part of the contract required to appear for 6 days for rehearsals in which the actor did not turn up for 3 days so there was a breach of contract. However this was seen as a minor breach which meant there could be a claim for damages but the contract could not be terminated.

Lastly are ‘innominate terms’ which is when a third classification has materialised, there is a ‘wait and see’ approach in these cases. The remedy will depend on the effects of the breach and not the status of the term. In addition the importance attached to such intermediate terms depends on the nature and effects of the breach. This relates to the case commentary showed below.

Case commentary regarding Hong Kong Fir Shipping v Kawasaki Kisen Kaisha Ltd [1962]. Firstly I do believe this case can lead to confusion and it is important to establish whether there was a breach of a condition or a warranty in order to obtain the fairest decision for both parties involved. Due to the fact the ship was not fit for purpose in this first place and the plaintiff openly admitting this I do not believe a contract should have been made. To request something that you would need to work in order to carry out your obligations and openly enter a contract with the item not being fit for purpose is not what 'the reasonable man' would do. The fact the Charpertparty contained a term which expressly stated and required the plaintiff to provide a ship which was 'in every way fitted for ordinary cargo service'. Personally I would regard this term as a condition if the ship cannot carry out its duties it would simply be a burden to both parties to be attached to a contractual agreement which cannot perform its duties. This is why I also believe the claimants have the right to sue for damages and most importantly terminate the contract in question. Despite the fact the decision was in favour of the plaintiff as they expressed the fact that the ship was not seaworthy; it is at that moment in time the negotiations for the contract should not have formed.

Made with Adobe Slate

Make your words and images move.

Get Slate

Report Abuse

If you feel that this video content violates the Adobe Terms of Use, you may report this content by filling out this quick form.

To report a Copyright Violation, please follow Section 17 in the Terms of Use.