Contractual term
A contractual term is "any provision forming part of a contract".[1] Each term gives rise to a contractual obligation, the breach of which may 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.
The terms of a contract are the essence of a contract, and tell the reader what the contract will do. For instance, the price of a good, the time of its promised delivery and the description of the good will all be terms of the contract.
"Terms" and "conditions", although slightly different in their significance, are often treated together in phrases such as "standard terms and conditions",[2] or "Ts and Cs".
Classification of term[edit]
Condition or Warranty[edit]
Conditions are major provision terms that go to the very root of a contract breach of which means there has been substantial failure to perform a basic element in the agreement. Breach of a condition will entitle the innocent party to terminate the contract.[3] A warranty[4] is less imperative than a condition, so the contract will survive a breach. Breach of either a condition or a warranty 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's obligation to perform the opening night of a theatrical production is a condition,[5] whereas a singer's obligation to perform during the first three days of rehearsal is a warranty.[6]
Statute may also declare a term or nature of term to be a condition or warranty. For example, the Sale of Goods Act 1979 (UK) s15A[7] provides that terms as to title, description, quality, and sample (as described in the Act) are conditions save in certain defined circumstances.
Innominate term[edit]
Lord Diplock, in Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd,[8] created the concept of an innominate term, breach of which may or may 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 categorizing into condition or warranty due to legal certainty.[9] This was interpreted by the House of Lords as merely restricting its application in Reardon Smith Line Ltd. v Hansen-Tangen.[10]