Contractual Cartography Guidelines

Whatis Contractual Cartography Guidelines?

Is to help the court to distinguish which express statement amount to a representation or a terms of a contract. The distinction is important so that proper remedies can be granted to the claimant accordingly and to avoid too rigid adherance towards parties freedom of anatomy.

Thus, a few guidelines has been put down to help the court to do so by Lord Moulton in Heilbut Symons v Buckleton.

1. The time the statement was made and the importance of the statement and undertakings by the promisor

Cases that illustrates thispoint are:
Bannermanv White[5] •

This is where a prospective buyer, in the course of negotiating for the purchase of hops, asked the seller if any sulphur had been used in their treatment, adding that, if it had, he would not even trouble to ask the price.

• The seller answered that no sulphur had been used.
Held: It is anundertaking and therefore is a term of a contract. A reasonable man would notbuy if he had known that the hops had sulphur.

Couchman v Hill[6](Court of Appeal)
• There was a statement that a heifer is “unserved” by a seller is a term and may override any written terms to negate liability.

Birchv Paramount Estates[7]
Whena seller makes a promise about something that which is or should be within hiscontrol intending that the buyer would act on it, it was easy to infer that thestatement was a term of the contract.


2. Did the person who made the statement have special knowledge or skill as compared to the other party?

Inorder to understand to different, the cases such as Oscar Chess v Williams and Dick Bentley v Harold Smith Motor should be considered.

Oscar Chess v Williams[8] (Court of Appeal) • A statement by a seller to car dealers of the model of a car is was not a term of the contract It was the plaintiffs as car dealers, who possessed special skill and knowledge, and who if anyone could have discovered in time the true age of the car.

Contrast this with:

Dick Bentley v Harold Smith Motors Ltd. [9] • The defendants were motor dealers made a statement in relation to the mileage of the car to the plaintiffs who were private purchasers.

• The statement turned out to be wrong, as the actual mileage was more.
Held: The defendant’s statement in relation to the mileage of the car was aterm of the contract. The defendants were as motor dealers involved in therunning of a car business whereas the plaintiffs were not. Therefore it wasreasonable for the plaintiffs to rely on the statement made by the defendants.

3. Accepting responsibility or advising on verification?
This guide concerns as to whether the maker of the statement takes responsibility over the statement.

Consider the case of Schawel v Reade[10]
Here, there is a declaration of a seller, “ You need not look foranything; the horse is perfectly sound. If there was anything the matter withthe horse I would tell you.” Would render a statement a term
Compared this case to:

Ecay v Godfrey[11] - Here, there would not be a term inferred if there is no undertaking by sellers – such undertaking could be negated by suggesting for a survey to be conducted.

4.Was the statement reduced to writing?
This is where you would have to understand the impact and status of statements that were reduced into writing and those which are not.

Routledge v McKay[12]
If the parties intended the statement to be a term where there is a written agreement, the statement would have incorporated into the written agreement. Failing to incorporate such a term would indicate that it may not be important enough to be a term