Innominate terms

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Sometimes it is hard to determine the status of terms, thus an intermediate category  for such terms is developed- innominate terms. Whether termination is available depends on the ‘waiting and seeing’ at time of the breach and whether it is so fundamental to strike the fundamental purpose of the contract. If the breach is serious, it will be classified as a condition and able to be rescinded. and if it is not, it will be classified as a warranty- where rescission is not available.

The parties may describe the terms as condition themselves. An examination of innominate terms, the courts will not take this as decisive but judge on the facts of the case. They are thus giventoo much discretion and this may potentially be unjust to parties who has really mean the terms to be construed as condtions.zl

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In the case of Hong Kong Fir Shipping vKawasaki, Here the claimants have chartered a ship for 2 years. Due to faulty engines and inadequate staff, 20 weeks of the charter has been lost to carry out repairs. The ship was contracted to be ‘in every way fitted for ordinary cargo service’ Hence the defendants have obviously able to claim damages but instead they chose to rescind the contract. The claimants sued for wrongful repudiation- claiming that their breach did not entitle them to sue for damages,

Conventionally, the courts will determine the status of terms at the time of ...

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