a very good afternoon to all of you uh surprisingly uh you're absent from the classroom but i have not actually uh told you that we are not going to have a physical or face-to-face lecture today but i'm even cutting it just five or two meters away from your classroom the classroom is completely empty so i shared with my colleague mr daniel bewell and i decided that let me set up a zoom schedule if we'll be able to get you to come online so thank god that as many of you as possible are here so of course 51 that's not all of you but at least we can still do some work and hope that we're able to record the session and make it available to those who uh to no photo yes are absent from this session so just a quick recap no so far we'll be discussing in terms of our contracts and we made a point that another way of referring to terms of contract is what you call like the content of the contract that is the the duties of we have made a point before that by terms of contract also known as the content of contract tango the wi-fi is back the university network it keeps coming and going off but thank god yeah so we've uh understood uh so far what ends of contract mean and we have looked at how to identify or recognize the temps in terms of express terms what the parties themselves are going on if you look at where it is reduced into writing the peru for that and these exceptions we've also discussed uh where it is by word of mouth is oral contracts now how we use the objective tests to try and determine what the parties are agreed upon then we move on to discuss the relative importance of terms relative importance of terms in other words our terms are still important or some are more important than others uh so that is where adding the we were the last time i haven't already discussed that so and then the last time we said that uh traditionally i think we've even gone uh beyond this and then uh we put this on the uh the recording on the youtube for you but we quickly and uh uh get out of here and continue with the exemption clause today so with respect to categorization of terms we said that our interests lies in understanding the basic weather terms contracts are of the same status or some are more important than others we answered that question in the affirmative that yes sometimes are more important than others and for that reason when they are breached or when they are broken they generate different consequences and different remedies available to the innocent parties so we made the point that traditionally terms are divided into condition and warranty that is the traditional uh of terms condition or warranty and we made a point that not too long ago years or so ago a hybrid temp or intermediate term known as a nominated or something recognized by the course who making terms now either condition or in limited uh cases uh nominate or hybrid term as uh the case uh maybe so we move on to uh take them one after the other and we explain our condition to be a term of a major importance as it goes to the very root for the very and for that matter where there is a breach of that term the innocent party is entitled to repudiate the con in other words treat the contract as having come to an end and not only that he'll be able to bring an action that is you recover damages or or compensation for breach of contracts and of course should the defaulting party maybe bring an aspect of the contract to be enforced against this innocent party he can set up the bridge that condition as a defense to any suit which the other party may want to bring for specific performance of some contract so what is important remember is that condition is the term of paramount importance that is major importance why is this so because the contract depends upon that so that if it is not true if it is not there if it is not carried out it affects continuation of the contract it affects the essence of the contract and that is why a breach of it is considered as being a good a good reason to repudiate the contract in other words to terminate the contract treat the contract as having been shot as having come to an end yeah so that is a condition and we have also said a breach of it will enable the innocent party to uh not only see i mean to treat the contrast having come to an end but don't show still to recover uh compensation as it were and then there's a traditional uh case of uh posad against pierce and pond decided in 1876 where there was a contract for employment of an actress she was supposed to play a very important role or the living role in an opera that is a concept performance i mean those this that was a major thing and she fell ill five days before the first performance and her illness uh according to the facts were serious and you could not be sure regarding when it's going to come to an end for her to recover fully for that matter she was not able to uh take part in the performance during the first week of course it was all just going to be a one week it was going to be for a long period about in three months and because she couldn't take part in the first week of performance the management those who were in charge of the production guided to sign up a substitute to take her room and accordingly proceeded to terminate the contract which they had with this particular person who had fallen sick and later on uh this person sued them for having terminated a contract and uh which came up for determination was that that as weather i recommend that uh she takes up the rope right from the very start was a term of major importance or not the cuts was of the view that yes it was something of major importance in veda matter her inability to take part was a ground which could justify uh the producers going for another person yeah so that was what uh the course said that it was a condition and if it is looking it's repudiates or it brings about termination of the contract now question which may come up is this so uh how do we know whether a term is a condition of course we know what the condition is but how does it become a condition is it the artist that will say that it is a condition or uh it is the court well in the course of our uh discussion or what you ought to have red based upon my earlier direction ultimately it depends upon attention of the parties an intention of the parties is regarded in the contract except that where the parties have put a false label on a particular term calling the condition that persay will not be conclusive of the matter and of course you might have come across the famous west in the case of a street and manfrotto that you cannot call a table a dog and expect that everybody who called the table a dog as it will as well let's keep that in mind so if you look at the abuse act of 1962 uh certain terms uh have been like terms have been designated as conditions so once they've been designated as conditioned then that is how it is so that is a contender we should keep in mind so let's look at the the the flip side or the the the contrast we also have the warranties and warranties on the other hand are terms of relatively lesser importance or if you like their subsidiary statements of facts or promises and because they have lesser importance in the event of their breach the innocent party cannot treat the country that's having come to an end the innocent people have continued to observe the contracts except that because there has been a bridge he will be entitled to bring a suit to recover damages and last semester when we were discussing damages for breach of contracts you came across the principle that it is the policy of the common law that whenever there has been a breach of a contract the innocent party is entitled to damages even if no particular loss or injury could be established following the bridge of the contract all that much is that you can show that someone was supposed to do something and and that was not carried out to the letter and that is a bridge and warranty provide a good illustration for that and that is why it is a law that where a warranty is breached the innocent party cannot repudiate the contract but can maintain an action for uh recovery of damages if it what do you call like a nominal damages that is just a token or symbolic asset where there's a cabe do you want to speak i noticed you have omitted yourself okay yeah so uh a good case will illustrate warranties uh just as we saw preside against spears in relation to uh condition uh is a case of uh bethany and bethany and i uh very uh interesting uh kiss and the facts are very uh similar to what we have seen so here the singer was engaged to sing for a whole cc opera performance and was to arrive uh since this month before the takeoff of the production to enable uh the singer to take part in rehearsals and all that but he was lit and arrived at three days instead of six days in advance meaning that he missed some of business and the management of the the opera did not want him to continue so eventually when the matter came to cuts uh question which how to resolve was whether the provision or the club in the contract that he arrives uh says this to patek reheza is a term of major importance or not if it is then clearly by not arriving within the stipulated time he was in a clear breach of his contractual obligation on the other hand if it is not despite the fact that uh there has been a bridge it will not uh lead to repudiation or termination of the contracts but the internet went off so it's back again so let's continue it's just unfortunate but you have to manage yeah so the court held that the rehearsal clause was subsidiary term that is something of lesser importance and for that matter the the late arrival did not entitle the producers to terminate the contract so effectively the court was saying that it was a warranty not a condition and since it's a warranty it did not warrant or did not call for termination of the contract uh that is what mine and i was making uh the point not long ago as to how can we tell whether a term is a condition or warranty uh if we examine the contract the parties have meet can we just say that this is a this or this is a warranty well as i indicated not long ago ultimately it depends upon the intention of the parties the intention of the parties and the intention of the past uh is to be gathered from the contract and mind you the intention of the parties is not called terminus with the label or the description which the parties have given to the term in other words the parties might have stated that a particular term is a condition on the other hand if we examine the entirety the totality of the contracts if the court can gather from the entire country that the true intentions of the parties is that that particular term should be something of relatively lesser importance then notwithstanding the fact that the parties have given the label condition the courts could ignore that and say that that particular thing is a warranty and not condition is not so much about the description the parties are but more importantly the the the intention of the parties yeah so that is what we should keep in mind and is for us to remember is a well-known case of the schoola against a wickman uh machine tools in which the court emphasized that it is the intention of the parties rather than the description which they have given which is really important notice some of you have started making a notation on the screen yeah so uh in the in the school against the whitman case uh in the relevant contract at this there was a condition i mean we put condition in uh quitting unquote that is the description the parties are giving to that particular uh provision and that was that the distributor was supposed to visit says customers every week and was whether the failure of the distributor uh to be able to visit these customers every week could justify termination of the contracts now the cuts came to the conclusion that the word condition which the parties had ascribed to that particular clause should not be taken in extremes or in ordinary meaning as a condition as opposed to warranty because in the relevant contracts there was a separate clause which indicated when and the contract could be terminated so the court was saying that in the pharas there was a separate clause of provision uh given circumstances and the manner in which we terminate the contracts then the the fact that a certain uh clause of provision had been described as uh a condition should not be considered as having the usual consequences of a breach of a condition attendant opponent the usual con consequences are that a bridge of condition will justify termination of the contract but that was not to be sorry the internet went off again but we are back okay so let's uh take note of that and i will like you to also look at our own case of a social security bank limited against c-bomb services which also illustrates that how our own courts have applied uh the the meaning of conditioning that discuss and uh i asked you to read uh mrs duna harmon's uh book on thames and if you look at chapter 14 there she provides the case but the report is in the library and i will add that just as opposed to brief all cases it is useful for you not to to use the lazy approach of learning but to use the fat full approach by going to read the entire decision so that you get the better insight into the case so in the social security bank limited there was a contract between ceba uh services what is uplands and uh ssb with respect to money transfers of what they call like the moneygram and as part of the agreement between the parties ssv reserve the right to determine the agreement to determine means that to document by giving three months notice in writing to sebam where cbam was in bridge and this has been there to exercise this right of termination you just have to say we notice that yes we want to end the concert because we think that you have broken it it was further agreed but that is that sebum in addition to whatever advertisements and promotion programs that monogram embark on it will be responsible for advertising and promotion now this was however made subject to submission of all its advertising and promotional programs and materials for written approval proud to embarking on the program so that was the arrangement ssb that is the bank terminated the agreement uh citing the ground that such proud written approval was not given that is to say that before sebam did promotion and advertising it did not refer the material to ssb for use to before it went public to advertise so that was the the basis for exercising its right to terminate the contract so sebam sealed ssb for breach of contracts and cbam was successful at the court offices and that is a high court got the judgment that yes ssb was in breach of the contract the decision was affirmed again by the court of appeal and ssb appealed finally to the supreme court and the supreme court offend the decision by dismissing the appeal and the supreme court held among others that it is open to parties to their contracts to especially provide that either of them has an option to terminate their contracts and the breach of fundamental essential term is one of the grounds upon which the contract may be terminated so in the circumstances of this particular case the parties themselves had provided how the contract may be terminated and the supreme court made the points uh that a breach of obligation in the world necessarily called for an election on the part of the innocent party to exercise his right of termination but that must fit into one of the several options or situations permitted uh by law that is one that it goes to the whole root of the contract and not male part of it in other words broken is fundamental it goes to the the root that is obviously that is the condition and so that is what this room called is trying to say oh now it makes a further performance impossible for later i'll be discussing what they call the discharge by frustration so where the contract is translated then you cannot perform it and you will be excused from federal performance but that is not what we are talking about presently so presently we are talking about where the contract cannot be continued because one person has broken a term of a major importance yeah sorry the internet is behaving on campus but we are back so let's continue yeah so please uh read the case of a suggested credit bank again the cbam services now let's move on to the more recent uh category what we call the innominative uh or intermediate intermediate in the sense that uh it lies in it is neither conditioned nor warranty or we say it nominates and we nominate us uh meaning that it cannot be named because nominate means that it can be named but in no minute it cannot be named so you cannot name it either as a condition or a warranty yeah so because if you go to the the latin nomen nomen nominate means that you can name it so if it's a nominee it means i cannot be named and why can't it be named it cannot be named because you cannot name it as a condition or a warrant or look at it differently intermediate intermediate in the sense that a lie in between the lies and this is uh this the story goes back to 1962 when the well-known face of hong kong fair shipping company limited against kawasaki kazan kajal limited a very occasion very interesting name hong kong comedy limited vs kazan kajal limited as i said decided in 1962 let's look at hadapin in that case and then we use that to discuss uh the the the development of this new uh category of term we called in nominate or intermediate term now the hong kong fact is that plaintiffs own a ship which they chatted to the premiers for a period of 24 months from the delivery of the ship liverpool in february 1957. so this was a chatter party so chatter party is simply a contract under which a ship or a marine vessel or so is like there is list or is hired so this was a deal so the ship had been shipped i had been a list or given out for 24 months when it was delivered the engineering room staff were not many and it also appears that they were yeah the internet on campus is making the class never lighting my let's see yeah so as i said under the chatter party or the contracts the ship had been hired for 20 months but the staff those who are working in the engineering room were not very competent and the shape also had a bit of very antiquated or very old parts and so on now there was attempt in the contract or the charter party that the shape which the plaintiffs were supposed to provide to their defendants was in every way fitted for ordinary uh cargo service everywhere fitted for ordinary cargo seven fitted in every way of ordinary cargo so this was a crucial thing so with the contrasted that yes the shape that you are providing is in every way fitted for ordinary cargo service now after the ship had been delivered it was i mean it became uh on sea worthy especially on her voyage or return from osaka in japan it was delayed in the high seas for five weeks owing to a breakdown of the engine and again when it got to osaka sf uh he spent 15 more weeks because yeah he spent another 15 more weeks because the because the the staff were not very competent as there was a delay in actually getting the broken down engine fixed so eventually those who hide their ship that is the defendant they decided to repudiate the contract that is to terminate the charter party to treat the contract as having come to an end and they are no longer on the obligation to do whatever they are supposed to do under the contract the owners of the ship that is the plaintiffs they sued the defendant for breach of contract and they contended that the defendant had wrongfully exercised the right of repudiation as what had happened did not call for termination or repudation of the contracts eventually when the mata got to court the high court where which was a court of first insurance for purposes of this particular case i presided over by justice salmond uh agreed that yes there had been a breach of contract but the breach of the contract in this particular case did not entitle the defendant to repudiate the contract to treat the country that's having come to an end the court was not disputing the fact that there had been a breach of agreement there had been a breach of agreement but the fundamental question was whether the type of bridge which had occurred was that which could be used to terminate or to repudiate the contract so that was the crust of the of the matter eventually when he got to the court of appeal the court of appeal was not very excited to use the usual technology a court of appeal was not excited to use the usual technology to analyze what had happened if i say the usual that is to try and see whether what had been broken was a condition or a warranty the court was reluctant to use that and the english code for peace speaking through our lord justice diplock who eventually became a law lord in the house of laws uh acknowledged that it was where uh you have certain contracts it was not all the time we could reduce it to whether a term can write right away be described as a condition or a warranty but you need to adopt what we call the weight and see approach wait and see approach in the sense that you wait for the particular obligation to be uh broken or the particular attempt to be broken and then when the breach has taken place then uh what you do is to try and wait so the court was saying that uh is not all the time that you can just use the straightforward dichotomy of a term being the condition or being a warranty but some other times you will need to actually adopt the weight and see approach so that when a bridge has occurred you would actually uh gauge away the effects of the bridge on the rest of the contract if the effect of the bridge is to substantially uh deprive the innocent party uh of the entire benefits which he ought to have had under the contract then the court will say that the innocent party should be giving remedies which are given for a breach of a condition on the other hand if the the effects or the consequence of the breach does not substantially deprive the innocent party of the benefit he or she should have received under the contract then the court will say that the innocent party should be giving remedies which are given for warranty so pay attention then you said that according to using condition in a warranty uh language no you see with respect to condition what will happen is that you look at the contracts you can just interpret and say that this time is a condition or that term is a warranty even when as a matter has not been any incidents of a bridge if no bridge has occurred you can still come through or interpret the contract and yes it's a condition or that is a warranty and for that matter all the the legal effects which follow with the bridge of a condition or kicking and same thing applies to your warranty however with respect to innominating or intermediating what is happening is that you cannot just look at the contract and interpret it and say that this is this or that is that rather as lord that is the plot indicated you need to wait let someone actually breach it when the person has been or has breached it you weigh the impact you pay the effect of the breach on the contract if the effect of the breach is very serious very serious in the sense that it's virtually empty or deprived the innocent party of the most important benefit that he's supposed to get under the contract then you say that the innocent party should be allowed to exercise remedies which are usually exercised for breach of a condition on the other hand if you wear the effect of the bridge and it's not that serious you will simply say that the same party should be given remedies for breach of a warranty yeah so we simply say that the hong kong fair introduce what we call the wait and see approach in trying to determine the status of a team in a contract so that is what we should keep in mind but of course the hong kong fair case also introduced a bit of a confusion because the conversion introduced was this doesn't mean that we should forget about the april uh classification by order by just using a condition or a warranty and simply say that in every situation let a bridge okay and then when the bridge has okay they will measure the impact of the bridge from the contract then we determine whether we should allow remedies for breach of condition or remedies for breach of a warranty so if you look at the cases like the the mija las angelus the mijalas angelus is another case which involved a charter party relating to the hiring of a vessel the vessel was called the mijalis angelus and the court of appeal seemed to have reverted to the old approach that is whether you treat it as a condition or as a warranty yeah so i would like to at the mihala say angelus but uh we also have other line of authorities which seems to follow what they call the bridge base bridge-based principle that is the way approach the wait and see approach in the hong kong because that is a bridge base that waits for a bridge to occur and then you weigh the effect of the bridge on the on the right of the innocent party under the contract and before you make a determination as to how it should be uh compensated or not so two cases you look at the the sahabi against the bremer anderson as well as the the hansard node the hansard node is the name of the ship and they stick in that particular case and if you look at the seller had sold a cargo of cytrus pellets with a term in the contract that the shipment be made in good condition so that was their term the shipment should be made in good condition and eventually the buyer rejected the cargo on the basis that this term had been broken the term that the shipment should be made in good condition had been broken there's a bricks here and there is very wary but the university network uh usually when i do my zoom from home it's more smooth than this neutral but let's manage and see what we can do yeah so uh the defects uh which the buyer was uh relying upon was not serious in the assessment of the court it was not serious and for that matter the court held that although the english sale of goose acts had classified sometimes as conditioning warranties it did not follow that all the terms have to be so classified accordingly uh in the miralas uh angelus the cuts are held that it could consider the effect of the bridge and since in the circumstances of this particular case the effect of the bridge was not serious the buyer was not and reject the goods the buyer was not entitled to repudiate yeah so uh that is what the court was saying and what is interesting is that if you look at the the mijalis angelos the court to the standard of saying that despite the fact that the sale of goose acts might have classified certain tale as a condition or warranty that was not conclusive of the matter and that is why i said i did not follow that all the times how to be so classified and that in some appropriate circumstances you need to look at the actual breach which has occurred and what is the effect of the breach on the right of the innocent part under the contract and that is what would actually be the guide and not any uh if you like predetermined classification as its way and that is why in the similar case after the mijalis angelos of reading smith against hansen tangent an oil tanker was described as osaka number 354 in fact it was ushima number 004 that was otherwise exactly as specified it was just the the description uh which uh appeared different now because the market for oil tankers had collapsed the chartress saw to argue that the number was a condition which would never so that when the number was supposed to have been uh oshima uh i mean osaka number 354 instead of the oshima number oh for they wanted to use that to represent the contra but if you look at the contents that was actually contained in the ship and all that it was the same thing which had contracted and the house of laws rejected the argument and held that the statement was nominated not a condition the effect of the bridge was trivia it did not justify termination so here you see that the cut is still is not the principle or the wait and see approach wait and see after a bridge you weigh the effect of the bridge on the contract and before you decide whether the unison party should be giving remedies for breach of a condition or remedies for a breach of a warranty yeah so interestingly in 1981 the court indicated its willingness to go back to the traditional a traditional approach in the sense of going back to the prey on conflict because the prayer hong kong fair was a traditional prayer that is a time was either a condition or a warranty and there was no in between there was no middleweight the courts wanted to go back to the parade hong kong fair and some judges were the view that lord that's a ziploc had unnecessarily introduced completely following his uh idea nominated him in hong kong fair and so some thought that well on grants of commercial necessity let's go back to the old approach so the time is under conditional warranty and there's nothing like i see the the bridge before we can classify his status and so and that was why in banged against us lord wilberforce i remark and i could i do not doubt that in a suitable in suitable cases the cost should not be reluctant if the intentions of the parties are shown by the contract so indicate to hold that an obligation has the force of a condition and that indeed they they should usually do so in the case of time colossals in meccantar contracts to such cases the gravity of the bridge approach hong kong fair will be unsuitable so simply in bang against others lord robert foster just trying to say that uh we appreciate that there are some instances in which the hong kong fair principle will be irrelevant or not be very helpful so that was all that i was trying to say and i usually like hong kong fair or around it as part of my examination question so you not do yourself a lot of harm if you pay that thing and because uh all of you like uh mickey mouse uh mickey mouse would like to see that we have ended this side of the discussion and we'll move on to another aspect so let me open my next slide and i will go straight away to discuss what they call the exclusion clauses so maybe let me restart the easily uploaded