Law · Year 12

Active learning ideas

Terms of the Contract

This topic moves inside the contract to examine its building blocks: the terms. You will equip students with the analytical tools to classify these terms and understand the critical link between a term's status and the consequences of its breach.

• National Curriculum Attainment Targets
• A-Level Law (AQA/OCR/Edexcel): Contract Law - Contract Terms

• 30–45 min
• Pairs → Whole Class
• 3 activities

Activity 01

• Case Study Analysis
• 45 min · Small Groups

Case Study Clinic: Condition or Warranty?

Students work in small groups to analyse a series of short problem scenarios, each involving a breach of contract. They must identify the breached term, classify it as a condition, warranty, or innominate term, and justify their reasoning with reference to case law.

Compare the legal effects of breaching a condition with breaching a warranty.

Facilitation Tip

Provide a framework or worksheet to guide their analysis, ensuring they consider the root of the contract and the seriousness of the breach's consequences.

What to look for

A problem question scenario where students must write a short paragraph identifying a breached term, classifying it with justification, and stating the available remedy.

• Analyze
• Evaluate
• Create
• Decision-Making
• Self-Management

Activity 02

• Case Study Analysis
• 30 min · Pairs

Contract Drafting Challenge

In pairs, students draft a simple one-page contract for a familiar service, such as booking a DJ for a school prom. They must include at least two express conditions and two express warranties, clearly labelling them and explaining their choices.

Explain how terms can be implied into a contract by statute, such as the Consumer Rights Act 2015.

Facilitation Tip

Encourage students to think about what would be a 'deal-breaker' (a condition) versus a minor inconvenience (a warranty).

What to look for

An essay question requiring students to 'critically evaluate the contribution of the innominate term to English contract law', demanding analysis of key cases and legal principles.

• Analyze
• Evaluate
• Create
• Decision-Making
• Self-Management

Activity 03

• Case Study Analysis
• 40 min · Whole Class

The 'Hong Kong Fir' Debate

Divide the class into two sides to debate the motion: 'The innominate term approach has created unnecessary uncertainty in commercial contracts'. This encourages students to evaluate the pros and cons of judicial flexibility versus commercial certainty.

Analyse the approach taken by the courts when classifying innominate terms.

Facilitation Tip

Assign specific cases to each team to use as evidence for their arguments, such as The Mihalis Angelos and Cehave v Bremer.

What to look for

Students use a peer-marking grid to assess a partner's answer to a problem question, focusing on the correct identification and classification of terms and use of legal authority.

• Analyze
• Evaluate
• Create
• Decision-Making
• Self-Management

A few notes on teaching this unit

Start with the tangible distinction between express (written/spoken) and implied (unspoken) terms using relatable examples. Use the classic pairing of Poussard v Spiers and Bettini v Gye to create a clear, memorable contrast between conditions and warranties. Introduce Hong Kong Fir Shipping as a development that adds flexibility, prompting students to think not just about the term, but the real-world impact of its breach.

Upon completion, students will be able to dissect contractual agreements, confidently classify terms as conditions, warranties or innominate, and determine the legal remedies available to an innocent party.

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Watch Out for These Misconceptions

• Any term written in the contract is a 'condition' in the legal sense.

  The word 'condition' has a specific legal meaning. A term is a condition only if it goes to the root of the contract. Courts can and do overrule the labels used by the parties if they believe it does not reflect the term's true importance, as seen in Schuler AG v Wickman Machine Tool Sales Ltd.

• If a contract is broken, you can always cancel it.

  The right to terminate the contract (repudiation) is only available for a breach of condition, or a sufficiently serious breach of an innominate term. For a breach of warranty, the only remedy is damages; the contract itself must continue.

• Implied terms are just made up by judges to be fair.

  While fairness is a factor, implied terms are not arbitrary. They are implied by statute (e.g., Consumer Rights Act 2015), by established custom in a particular trade, or by the courts to give a contract 'business efficacy', meaning to make it work as the parties must have intended (The Moorcock).

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Methods used in this brief

• Case Study Analysis