Professional Documents
Culture Documents
of
a
Contract
(D’08
Q4)
Matters
which
have
been
agreed
between
the
parties
to
a
contract
and
which
have
been
incorporated
into
the
contract.
Conditions
-‐ Essentially
a
condition
may
be
said
to
be
a
term
of
a
contract
which
is
so
important
to
the
main
purpose
of
the
contract
that
the
breach
of
it
by
one
party
will
entitle
the
other
to
terminate
it
altogether.
-‐ Although
the
CA’50
does
not
define
a
condition,
the
SoGA’57
states
that,
a
condition
is
a
stipulation
essential
to
the
main
purpose
of
the
contract,
the
breach
of
which
gives
rise
to
the
right
to
treat
the
contract
as
repudiated.
Warranties
-‐ A
warranty
may
be
said
to
be
a
term
of
a
contract
which
is
not
important
to
the
main
purpose
of
the
contract.
-‐ It
is
defined
in
the
SoGA’57
as
‘a
stipulation
collateral
to
the
main
purpose
of
the
contract,
the
breach
of
which
gives
rise
to
a
claim
for
damages
but
not
a
right
to
reject
the
goods
and
treat
the
contract
as
repudiated’.
-‐ A
breach
of
warranty
will
entitle
the
innocent
party
to
claim
damages
only.
-‐ It
must
be
noted
tat
a
party
who
is
entitled
to
terminate
the
contract
for
breach
of
a
condition,
may
choose
to
continue
the
contract
and
treat
the
breach
as
a
breach
of
warranty
only.
-‐ In
such
cases
he
will
only
be
entitled
to
damages.
Associated
Metal
Smelters
Ltd
v
Tham
Cheow
Toh
(The
furnace
did
not
met
the
requirement
of
having
a
temperature
of
not
less
than
2600
F.
Plaintiff
was
only
entitled
to
damages.)
Innominate
Terms
-‐ ‘Intermediate’
or
‘innominate’
terms
as
they
are
otherwise
referred
to
are
terms
which
are
too
complex
to
be
classified
either
as
a
condition
or
a
warranty.
-‐ They
lie
somewhere
between
a
condition
and
a
warranty.
-‐ In
such
cases
the
court
has
the
task
of
determining
the
seriousness
of
the
breach
and
also
to
determine
whether
such
breach
should
entitle
the
plaintiff
to
the
right
to
terminate
the
contract
or
merely
to
claim
damages.
Hong
Kong
Fir
Shipping
Co
Ltd
v
Kawasaki
Kisen
Kaisha
Ltd
(The
term
was
regarded
as
too
complex
to
be
classified
either
as
a
condition
or
a
warranty)
Section 30 CA’50 -‐ Agreements, the meaning of which is not certain, or capable of being made certain are void.
General
Rule
-‐ Where
the
exclusion
clause
is
clear
and
unambiguous,
the
courts
will
hold
that
the
exemption
clause
is
valid.
Playing
Cards
(M)
Sdn
Bhd
v
China
Navigation
Ltd
(In
this
case,
the
appellants
ordered
goods
from
New
York.
It
was
arranged
that
the
goods
would
be
shipped
to
Malaysia
on
the
respondent’s
ship.
The
bill
of
lading
provided
that
‘the
carrier
shall
not
be
liable
for
any
loss
or
damage
arising
or
resulting
from
delayed
or
early
arrival
of
the
goods
and
that
any
under
or
over
carriage
shall
not
be
considered
a
deviation
or
vitiate
any
term
of
the
bill
of
lading.
The
goods
in
question
which
were
supposed
to
be
put
on
board
a
ship,
which
was
due
to
arrive
on
25
December
1973
were
in
fact
loaded
on
to
another
ship
which
arrived
in
June
1974.
The
Federal
Court
held
that
the
exemption
clause
was
effective
and
gave
judgment
for
the
respondents.)
Chartered
Bank
of
India,
Australia,
and
China
v
British
India
Steam
Navigation
Co
Ltd