26 October

Contents of Contract: Terms, Representations, and Exclusion Clauses in Nigerian Law

in 200 Level, Class Notes, Law of Contract

Once a valid contract has been formed through offer, acceptance, consideration, and intention to create legal relations, the next critical question becomes: what exactly did the parties agree to? The contents of a contract determine the rights and obligations of the parties, the scope of their commitments, and the remedies available for breach. Understanding contract contents is essential for second-year law students because disputes rarely arise from whether a contract exists, but rather from what the contract actually requires.

Consider this scenario: A buyer purchases a car from a dealer. The dealer states that “this car is in excellent condition” and shows the buyer a document stating “all warranties excluded.” The car breaks down within a week. Can the buyer sue for breach? Was the dealer’s statement about condition part of the contract? Does the exclusion clause protect the dealer? These questions go to the heart of contract contents.

This article examines four critical aspects of contract contents under Nigerian law: contractual terms (the promises that form binding obligations), representations (statements made during negotiations), exclusion and limitation clauses (attempts to restrict liability), and the doctrine of fundamental breach (which limits the effectiveness of exclusion clauses). As you learned in your study of contract formation, understanding not just whether a contract exists but what it contains is crucial to legal practice.

Part One: Terms of the Contract

Understanding Contractual Terms

A term of a contract is a provision forming part of the contract, breach of which gives rise to remedies including damages, specific performance, or rescission. Terms represent the actual obligations the parties have undertaken. They are the promises that, if broken, constitute a breach of contract.

Terms must be distinguished from mere representations or statements of opinion. The distinction is critical because breach of a term gives contractual remedies, while a false representation may give remedies in misrepresentation (rescission, damages in tort) but not necessarily contractual damages.

Express Terms

Express terms are those explicitly agreed upon by the parties, whether orally or in writing. They represent the parties’ conscious intentions as manifested in their agreement.

Formation of Express Terms

Express terms arise through:

Oral statements during negotiations that the parties intend to be binding
Written documents signed or exchanged by the parties
Standard form contracts
Documents incorporated by reference

The Parol Evidence Rule

Where a contract has been reduced to writing, the parol evidence rule provides that extrinsic evidence cannot generally be admitted to add to, vary, or contradict the terms of a written agreement.¹ This rule promotes certainty and protects the integrity of written contracts. However, numerous exceptions exist:

Evidence to show the contract is not yet operative: Evidence is admissible to show that despite appearing complete, the written document was subject to a condition precedent.
Evidence of collateral contracts: A party may prove the existence of a separate collateral contract alongside the main written agreement.²
Evidence to explain ambiguity: Where terms are ambiguous or technical, evidence may be admitted to clarify meaning.
Evidence of custom or trade usage: Evidence of customary terms in a particular trade may be admitted to supplement express terms.
Evidence of invalidity: Evidence is always admissible to show the contract is void or voidable (e.g., for mistake, fraud, or illegality).

In Van den Berghs Ltd v Clark,³ a written contract for the sale of a business contained detailed terms but made no mention of a prior oral agreement that the seller would not compete with the buyer. The court held that evidence of this collateral contract was admissible despite the parol evidence rule.

Interpretation of Express Terms

Nigerian courts apply established principles when interpreting contractual terms:

Ordinary Meaning: Words are given their plain, ordinary meaning unless context indicates otherwise. Courts assume parties used words in their normal sense.

Contextual Interpretation: Terms are interpreted in the context of the entire contract. A provision must be read alongside other clauses to determine its true meaning.⁴

Contra Proferentem: Ambiguous terms are construed against the party who drafted them. This is particularly significant for exclusion clauses, which are strictly construed against the party seeking to rely on them.⁵

Business Efficacy: Courts may imply terms necessary to give business efficacy to the contract—terms without which the contract would be unworkable or absurd. However, courts will not rewrite the parties’ bargain under the guise of interpretation.⁶

In BFI Group v Bureau of Public Enterprises,⁷ the Supreme Court emphasized that contract interpretation seeks to ascertain the parties’ true intention as manifested in their agreement, not what they might have intended but failed to express.

Implied Terms

Not all contractual obligations are expressly stated. The law implies certain terms into contracts based on various grounds:

1. Terms Implied by Statute

Legislation may imply terms into specific types of contracts. The Sale of Goods Act⁸ implies terms regarding title, description, quality, and fitness for purpose in contracts for the sale of goods. These statutory implied terms are crucial consumer protection measures.

Under the Sale of Goods Act:

Section 12 implies a condition that the seller has the right to sell the goods
Section 13 implies that goods sold by description must correspond with that description
Section 14 implies that goods must be of merchantable quality and fit for their intended purpose (where the buyer relies on the seller’s skill or judgment)

2. Terms Implied by Custom

Terms may be implied based on the custom of a particular trade, locality, or market. For such a custom to be incorporated:

It must be notorious (widely known in the relevant trade/locality)
It must be certain and consistent
It must be reasonable
It must not contradict express terms of the contract⁹

In Nigerian commercial practice, customary terms relating to port usage, commodity trading, and land transactions frequently supplement express contractual provisions.

3. Terms Implied in Fact

Courts will imply terms to give effect to the parties’ presumed intention where:

The Business Efficacy Test: The term is necessary to make the contract work. In The Moorcock,¹⁰ Bowen LJ stated that terms may be implied if necessary to give the transaction such business efficacy as the parties must have intended.

The Officious Bystander Test: If an officious bystander asked the parties at the time of contracting whether a particular term applied, both parties would respond “of course!” In Shirlaw v Southern Foundries Ltd,¹¹ MacKinnon LJ articulated this test.

Nigerian courts apply these tests cautiously. In Shell Petroleum Development Co v Tiebo VII,¹² the Supreme Court emphasized that courts will not imply terms merely because they would be reasonable, but only when necessary to give effect to the parties’ actual intention.

4. Terms Implied in Law

Certain terms are implied as a matter of law in particular categories of contracts based on the nature of the legal relationship. For instance:

Employment contracts contain implied terms of mutual trust and confidence
Landlord-tenant relationships contain implied covenants for quiet enjoyment
Partnership agreements contain implied terms of good faith

These terms are implied not to effectuate the parties’ intention but as incidents of the particular relationship created.

Classification of Terms: Conditions, Warranties, and Innominate Terms

Not all contractual terms have equal weight. Classification determines the remedies available for breach.

Conditions

A condition is a fundamental term, the breach of which entitles the innocent party to:

Treat the contract as discharged (repudiate)
Refuse further performance
Claim damages

Conditions go to the root of the contract. Their breach substantially deprives the innocent party of what they bargained for.

In Poussard v Spiers,¹³ an opera singer contracted to perform throughout a season but was ill and missed the opening performances. This was held to be breach of a condition, entitling the producer to terminate the contract.

Warranties

A warranty is a minor term, breach of which entitles the innocent party only to:

Claim damages
NOT terminate the contract

Warranties are collateral to the main purpose of the contract. Their breach does not go to the heart of the agreement.

In Bettini v Gye,¹⁴ a singer contracted to appear for a season and to attend rehearsals for six days before opening. He arrived only four days before opening. This was held to be breach of a warranty only—the producer could claim damages but not terminate.

Innominate Terms

Some terms do not clearly fall into either category. For innominate (or intermediate) terms, the remedy depends on the seriousness of the breach and its consequences, not on advance classification of the term.¹⁵

If the breach substantially deprives the innocent party of the contract’s benefit, they may terminate. If the breach is minor, only damages are available. This flexible approach, developed in Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd,¹⁶ allows remedies to match the actual impact of breach rather than being predetermined by term classification.

Nigerian courts recognize this tripartite classification and apply it to determine appropriate remedies.¹⁷

Determining Classification

How do courts determine whether a term is a condition or warranty?

Express Classification: If the contract explicitly labels a term as a “condition” or “warranty,” courts generally respect this (though substance prevails over form).

Statutory Classification: Statutes may classify terms. The Sale of Goods Act designates certain implied terms as conditions.

Judicial Precedent: Previous cases may have classified similar terms in similar contracts.

Construction of the Contract: Courts examine the contract holistically, considering:

The importance of the term to the parties
Whether breach would deprive the innocent party of substantially the whole benefit
Commercial context and parties’ reasonable expectations
The parties’ conduct and statements during negotiations

Time Stipulations

Whether time is “of the essence” determines whether delay in performance constitutes breach of a condition or warranty.

Where Time is of the Essence

If time is expressly or impliedly made essential:

Failure to perform by the deadline is breach of condition
The innocent party may immediately terminate and claim damages
No notice is required to make time essential where it was originally so

Time is impliedly essential where:

The contract expressly states it
The nature of the subject matter requires it (e.g., perishable goods)
Surrounding circumstances show timing is critical (e.g., seasonal goods)
The transaction involves time-sensitive commercial opportunities

Where Time is Not of the Essence

If time is not essential:

Delay is breach of warranty only
The innocent party can claim damages but not terminate
However, after reasonable delay, the innocent party may give notice making time essential

Once notice is given and expires, the innocent party may then terminate for continuing delay.

In Stickney v Keeble,¹⁸ it was established that where time is not initially of the essence, a party may make it so by giving reasonable notice requiring performance within a specified time.

Part Two: Representations

Distinguishing Terms from Representations

A representation is a statement of fact made by one party to induce the other to enter the contract. Representations must be carefully distinguished from contractual terms.

Key Differences

Aspect	Representation	Term
Nature	Inducement to contract	Part of the contract itself
Timing	Made during negotiations	Incorporated into final agreement
Legal Effect	Not binding unless becomes term	Creates contractual obligation
Remedy for Falsity	Rescission, damages in tort (if fraudulent/negligent)	Contractual damages, termination (if condition)

Tests for Distinction

Courts apply several tests to determine whether a statement is a representation or term:

1. Timing Test: Statements made during negotiations that do not make it into the final written contract are more likely representations than terms.

2. Importance to the Contracting Party: If a statement was clearly fundamental to the other party’s decision to contract, courts are more likely to find it became a term.¹⁹

3. Special Knowledge Test: If the maker of the statement possesses special knowledge or skill regarding its subject matter, courts more readily find the statement became a term. Conversely, if the party to whom the statement was made had better means of verification, it likely remains a representation.²⁰

4. Reduction to Writing: If an oral statement made during negotiations is not included in a subsequent written contract, this suggests it was a representation, not a term (though collateral contract arguments may apply).

5. Request for Verification: If the maker of a statement requests the other party to verify it, this indicates it was not intended as a term.²¹

In Bannerman v White,²² the buyer asked the seller whether hops had been treated with sulphur, stating he would not even ask the price if they had been. The seller stated they had not been treated with sulphur. This was held to be a term, not a mere representation, given its obvious importance to the buyer.

Types of Representations

Representations of Fact vs. Opinion

Only statements of fact can constitute actionable representations. Statements of opinion, commendation, or future intention generally cannot.

A statement of fact asserts the existence or non-existence of some factual matter. “This car has traveled 50,000 km” is a statement of fact.

A statement of opinion expresses the maker’s belief or judgment. “I think this car is in excellent condition” is opinion. However, if the opinion-giver possesses special knowledge, their opinion may imply facts—particularly that they actually hold the opinion stated and have reasonable grounds for it.²³

Mere Puffs

Extravagant commercial boasting or “puffing” creates no legal liability. Statements like “best quality in Nigeria” or “unbeatable value” are generally considered advertising puff, not actionable representations.

The line between puff and representation can be subtle. Specific, verifiable claims (“this phone has 128GB storage”) are representations, while vague superlatives (“amazing phone”) are puffs.

Remedies for Misrepresentation

When a representation proves false, remedies depend on the type of misrepresentation:

Fraudulent Misrepresentation

A representation is fraudulent if:

It is false
The maker knew it was false, or was reckless as to its truth
It was made with intention that it be acted upon
The representee relied on it and suffered damage²⁴

Remedies include:

Rescission (setting aside the contract)
Damages in the tort of deceit

In Derry v Peek,²⁵ the House of Lords established that fraud requires proof the defendant either knew the statement was false or was reckless (did not care whether it was true or false). Mere negligence is insufficient for fraud.

Negligent Misrepresentation

A negligent misrepresentation occurs where:

A false statement is made
Without reasonable grounds for belief in its truth
In circumstances creating a duty of care
Causing loss to the representee who relied on it

Remedies include:

Rescission
Damages in tort (under Hedley Byrne v Heller²⁶ principles)

The representor must prove they had reasonable grounds for believing their statement true up to the time of contract formation.

Innocent Misrepresentation

An innocent misrepresentation is one made without fraud or negligence—the representor reasonably believed it to be true.

Traditionally, the only remedy was rescission. However, courts may award damages in lieu of rescission where rescission would be overly harsh.²⁷

Rescission

Rescission aims to restore the parties to their pre-contractual positions. The contract is set aside ab initio (from the beginning).

Bars to Rescission

Rescission may be unavailable if:

1. Affirmation: The representee, after discovering the truth, affirms the contract through words or conduct indicating acceptance of it.²⁸

2. Lapse of Time: Unreasonable delay may bar rescission, particularly for innocent misrepresentation.

3. Third Party Rights: If third parties have acquired rights in the subject matter for value and without notice of the misrepresentation, rescission may be barred.²⁹

4. Restitutio in Integrum Impossible: If the parties cannot be substantially restored to their original positions, rescission may be denied.

5. Contract Executed: Some older authorities suggest executed contracts cannot be rescinded, though this is controversial.

Part Three: Exclusion and Limitation Clauses

Nature and Purpose

An exclusion (or exemption) clause is a contractual term that seeks to exclude or limit one party’s liability for breach of contract or negligence. A limitation clause restricts liability to a specified maximum amount or removes particular types of loss from the scope of liability.

These clauses are commercially significant because they allocate risk between contracting parties. However, their potential for abuse—particularly by parties with superior bargaining power—has led to strict judicial and legislative controls.

Common Forms

Exclusion clauses appear in many guises:

“The company accepts no liability for any loss or damage howsoever caused”
“All warranties, express or implied, are hereby excluded”
“Liability shall be limited to the contract price”
“No responsibility is accepted for loss or damage to vehicles”
“Subject to conditions displayed inside”

Requirements for Validity

For an exclusion clause to be effective, it must satisfy three requirements:

1. Incorporation into the Contract

The clause must actually form part of the contract. It cannot be introduced after the contract has been concluded. Incorporation may occur through:

Signature: If a party signs a contractual document, they are generally bound by all its terms, whether read or not. In L’Estrange v F Graucob Ltd,³⁰ the plaintiff signed a sales agreement without reading it. The court held she was bound by an exclusion clause in the document.

Reasonable Notice: For unsigned documents, the party relying on the exclusion clause must prove they gave reasonable notice of it before or at the time of contracting. What constitutes reasonable notice depends on:

The nature of the document (contractual documents like tickets vs. mere receipts)
The prominence of the clause (clear, legible, appropriately positioned)
The timing (before or at the time of contract, not after)
Industry practice and the representee’s knowledge

In Olley v Marlborough Court Ltd,³¹ a hotel displayed a notice in bedrooms excluding liability for lost property. The court held this gave no protection because the contract was formed at reception before the guest saw the notice.

Previous Course of Dealing: Where parties have dealt regularly on terms containing an exclusion clause, it may be incorporated even if not specifically drawn to attention in the particular transaction, provided:

The course of dealing was consistent
There were sufficient previous transactions
Reasonable notice was given previously³²

2. Construction and Interpretation

If incorporated, the clause must be construed to determine its scope. Courts apply strict interpretation rules, particularly the contra proferentem rule.

The Contra Proferentem Rule

Ambiguous exclusion clauses are interpreted against the party seeking to rely on them.³³ This rule applies with particular rigor where:

The clause seeks to exclude liability for negligence
The clause is in a standard form contract
There is inequality of bargaining power

For an exclusion clause to protect against negligence liability, it must either:

Expressly mention negligence, or
Be so clearly worded that negligence is the only liability it could apply to³⁴

The Four Corners Rule

An exclusion clause only protects the party in respect of matters falling within the “four corners” of the contract. If a party commits a wholly different breach outside the contract’s scope, or fundamentally fails to perform, the exclusion clause may not apply.³⁵

Particular Types of Loss

Exclusion clauses are strictly construed regarding the types of loss covered. Unless clear words are used:

Clauses excluding liability for property damage may not cover personal injury
Clauses referring to “loss or damage” may not cover consequential losses
General words may not exclude liability for specific categories of harm

Exclusion of Liability for Negligence

Attempting to exclude negligence liability faces particular scrutiny. The courts apply the following approach:

If the clause contains language expressly referring to negligence or its synonyms (“howsoever caused,” “whether by negligence or otherwise”), it will cover negligence provided it satisfies the incorporation and fundamental breach requirements.

If the clause contains no express reference to negligence, it will only cover negligence if:

Negligence is the only possible source of liability covered by the clause, or
The wording is sufficiently wide and clear to encompass negligence by necessary implication³⁶

This stringent approach reflects policy concerns about allowing parties to contract out of liability for their own carelessness, particularly where one party had no real choice but to accept the terms.

Unfair Contract Terms and Consumer Protection

Many jurisdictions have enacted legislation restricting exclusion clauses, particularly in consumer contracts. While Nigeria does not yet have comprehensive unfair contract terms legislation comparable to the UK Unfair Contract Terms Act 1977, several protective principles apply:

1. Common Law Controls: Strict interpretation rules and the fundamental breach doctrine provide some protection.

2. Sector-Specific Regulation: Certain industries face regulatory restrictions on exclusion clauses.

3. Public Policy: Courts may refuse to enforce exclusion clauses on public policy grounds where they would enable unconscionable conduct.³⁷

4. Good Faith: Nigerian courts increasingly reference good faith principles when examining potentially oppressive contract terms.³⁸

The Sale of Goods Act’s implied terms regarding quality and fitness cannot be excluded in consumer sales, providing statutory protection.

Part Four: Fundamental Breach

The Doctrine

The doctrine of fundamental breach limits the effectiveness of exclusion clauses. Where a party commits a fundamental breach—one going to the very root of the contract—they may not rely on an exclusion clause to escape liability.

The doctrine’s theoretical basis involves two competing views:

Rule of Law View: Fundamental breach represents a rule of law—exclusion clauses simply cannot as a matter of law apply to fundamental breaches, regardless of their wording.

Rule of Construction View: Fundamental breach represents a principle of interpretation—very clear words are needed for an exclusion clause to cover fundamental breach, but sufficiently clear words can achieve this.

Development of the Doctrine

In Karsales (Harrow) Ltd v Wallis,³⁹ the defendant agreed to purchase a car on hire-purchase. The car inspected was in working order, but the car delivered was a wreck, towed to the defendant’s premises. An exclusion clause purported to exclude all conditions and warranties. The Court of Appeal held the clause could not apply because the breach was fundamental—the seller had delivered something fundamentally different from what was contracted for.

The House of Lords in Suisse Atlantique Société d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale⁴⁰ rejected fundamental breach as an absolute rule of law, holding it is merely a principle of construction. Lord Reid stated that if clear words are used, an exclusion clause can cover even fundamental breach.

This was reaffirmed in Photo Production Ltd v Securicor Transport Ltd,⁴¹ where the House of Lords definitively established that fundamental breach is not a rule of law but a matter of construction. A properly drafted exclusion clause using sufficiently clear words can cover fundamental breach.

Application in Nigeria

Nigerian courts have engaged with the fundamental breach doctrine, though comprehensive Nigerian authority remains limited. The approach generally follows English law:

Courts will strictly construe exclusion clauses against the party seeking to rely on them, requiring very clear language to exclude liability for fundamental breach. However, the doctrine is one of construction, not an absolute rule—appropriate wording can exclude liability even for fundamental breach.

The doctrine retains particular relevance where:

Inequality of bargaining power exists
Consumer contracts are involved
The breach involves total failure of performance or delivery of something fundamentally different from what was contracted for

What Constitutes Fundamental Breach?

Fundamental breach involves:

Total failure to perform the contract
Delivering something fundamentally different in kind from what was promised
Breach of a condition going to the root of the contract
Breach destroying the contract’s entire purpose

Examples include:

A carrier undertaking to carry goods by sea instead putting them on an unsea-worthy vessel that sinks⁴²
A party contracting to provide one type of goods delivering something entirely different⁴³
Complete abandonment of performance
Performance in a manner fundamentally at variance with the contract

Part Five: Practical Implications and Drafting Considerations

For Contract Drafting

1. Clarity is Essential: Express terms should be drafted clearly, avoiding ambiguity. Ambiguous terms will be construed against the drafter (contra proferentem).

2. Exclusion Clauses Require Particular Care:

Ensure incorporation through signature or adequate notice
Use clear, explicit language
Specifically reference negligence if intending to exclude it
Consider whether the clause covers fundamental breach
Ensure consistency with statutory protections

3. Classification of Terms: Parties may expressly designate terms as conditions or warranties, though courts will examine substance over form.

4. Time Stipulations: If timing is critical, expressly state that “time is of the essence.”

5. Integration Clauses: Consider including an integration (entire agreement) clause stating the written contract constitutes the entire agreement, though this does not absolutely prevent claims of collateral contracts or misrepresentation.

6. Definitions: Define key terms explicitly to avoid interpretive disputes.

For Advising Clients

Buyers/Service Recipients:

Carefully read contracts before signing
Question and negotiate unfavorable exclusion clauses
Understand which statements are becoming contractual terms
Document important representations and request they be included as express terms
Query time stipulations and performance standards

Sellers/Service Providers:

Be cautious about pre-contractual statements that may become terms
Clearly distinguish sales “puffs” from factual representations
Ensure exclusion clauses are properly incorporated and worded
Consider reasonableness—overly broad exclusions may be unenforceable
Be aware that fundamental breach may override exclusion clauses

Common Problem Scenarios

Scenario 1: Oral Statements Not in Written Contract

A seller orally states “this equipment is suitable for industrial use” but the written contract contains no such term. Is the oral statement binding?

Analysis: Apply the tests for distinguishing terms from representations. Consider: the statement’s importance, timing, whether verification was requested, and the parties’ relative expertise. If held to be a term not incorporated into the written document, argue collateral contract. If merely a representation, remedies depend on whether false and, if so, whether fraudulent, negligent, or innocent.

Scenario 2: Exclusion Clause After Breach

A service provider’s standard terms contain a broad exclusion clause. After fundamentally breaching the contract (e.g., abandoning performance), they seek to rely on the exclusion clause.

Analysis: First, ensure the clause was properly incorporated (signed or reasonable notice given before contracting). Second, construe the clause—does it clearly cover the type of breach that occurred? Apply contra proferentem. Third, consider fundamental breach—is the breach so serious that the clause cannot apply? Post-Photo Production, properly worded clauses can cover fundamental breach, but very clear language is required.

Scenario 3: Time Delay

A contract for delivery of goods specifies “delivery by December 1” but contains no explicit statement that time is of the essence. Delivery occurs December 15. Can the buyer terminate?

Analysis: Determine whether time was impliedly of the essence given the nature of the goods, commercial context, and any statements made during negotiations. If time was not essential, the delay constitutes breach of warranty only—buyer can claim damages but not terminate unless they first give reasonable notice making time essential.

Conclusion

The contents of a contract—its terms, the status of representations, the effect of exclusion clauses, and the doctrine of fundamental breach—determine the practical rights and obligations of contracting parties. These matters generate the bulk of contractual disputes in Nigerian courts.

Several key principles emerge:

1. Terms vs. Representations: Not every statement becomes a contractual term. Courts apply multiple tests focusing on importance, timing, special knowledge, and the parties’ conduct. The distinction determines available remedies.

2. Express and Implied Terms: Contracts contain both express provisions and terms implied by statute, custom, fact, or law. Understanding both categories is essential to determining parties’ complete obligations.

3. Classification Matters: Whether a term is a condition, warranty, or innominate term determines remedies for breach. Conditions allow termination; warranties provide only damages; innominate terms depend on breach seriousness.

4. Exclusion Clauses Face Strict Scrutiny: Incorporation requires signature or reasonable notice. Interpretation applies contra proferentem. Fundamental breach may override exclusion clauses despite their wording.

5. Context is Critical: Contract interpretation and term classification depend heavily on commercial context, industry practice, and the specific relationship between parties.

For second-year law students, mastering contract contents requires understanding both doctrinal rules and their practical application. Problem questions frequently involve analyzing whether statements are terms or representations, construing exclusion clauses, determining whether fundamental breach has occurred, and advising on available remedies.

As Nigerian commercial law continues developing, these principles remain foundational. The interaction between common law rules, statutory provisions (particularly the Sale of Goods Act), and emerging consumer protection principles creates a dynamic legal landscape requiring careful navigation.

Your understanding of contract contents builds upon your prior knowledge of contract formation and privity. Together, these topics provide a comprehensive foundation for understanding how contracts work in Nigerian law—from formation through content to enforcement and breach.

The study of contract contents also reinforces lessons from your Legal Method studies about statutory interpretation, case analysis, and the balance between certainty and fairness in legal rules. The careful reading required to distinguish terms from representations and construe exclusion clauses exemplifies the precision demanded in legal practice.

Footnotes

This article is part of the Contract Law series for 200L students at learningthelaw.org. For foundational concepts, see our articles on Nature of Contract, Formation of Contract, and Privity of Contract. For related legal method concepts, review Legal Reasoning in the Judicial Process and Legal Reasoning and Approach to Problems.

Word Count: Approximately 9,200 words

The parol evidence rule developed through cases such as Goss v Lord Nugent (1833) 5 B & Ad 58. ↩
As in De Lassalle v Guildford [1901] 2 KB 215. ↩
Van den Berghs Ltd v Clark (1935) 51 TLR 475. ↩
See Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896. ↩
The contra proferentem rule applies particularly to exclusion clauses and ambiguous terms drafted by one party. ↩
Business efficacy derives from The Moorcock (1889) 14 PD 64. ↩
BFI Group v Bureau of Public Enterprises (2008) All FWLR Pt 416 Pg 1915. ↩
Sale of Goods Act (Cap S1 LFN 2004) (based on the UK Sale of Goods Act 1893). ↩
See Hutton v Warren (1836) 1 M & W 466 on custom in contracts. ↩
The Moorcock (1889) 14 PD 64. ↩
Shirlaw v Southern Foundries Ltd [1939] 2 KB 206. ↩
Shell Petroleum Development Co v Tiebo VII [1996] 4 NWLR (Pt 445) 657. ↩
Poussard v Spiers (1876) 1 QBD 410. ↩
Bettini v Gye (1876) 1 QBD 183. ↩
The innominate term category provides flexibility in determining remedies based on actual breach consequences. ↩
Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26. ↩
Nigerian courts have adopted the condition/warranty/innominate term classification in various commercial disputes. ↩
Stickney v Keeble [1915] AC 386. ↩
As demonstrated in Bannerman v White (1861) 10 CBNS 844. ↩
See Oscar Chess Ltd v Williams [1957] 1 WLR 370; Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd [1965] 1 WLR 623. ↩
Ecay v Godfrey (1947) 80 Lloyd’s LR 286. ↩
Bannerman v White (1861) 10 CBNS 844. ↩
See Smith v Land and House Property Corporation (1884) 28 Ch D 7. ↩
Derry v Peek (1889) 14 App Cas 337 established the elements of fraudulent misrepresentation. ↩
Derry v Peek (1889) 14 App Cas 337. ↩
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. ↩
The courts’ discretion to award damages in lieu of rescission developed at equity. ↩
Long v Lloyd [1958] 1 WLR 753. ↩
Phillips v Brooks Ltd [1919] 2 KB 243. ↩
L’Estrange v F Graucob Ltd [1934] 2 KB 394. ↩
Olley v Marlborough Court Ltd [1949] 1 KB 532. ↩
Spurling Ltd v Bradshaw [1956] 1 WLR 461. ↩
The contra proferentem rule is well-established in Nigerian law. ↩
See Canada Steamship Lines Ltd v The King [1952] AC 192 on excluding negligence liability. ↩
The “four corners rule” ensures exclusion clauses apply only to breaches contemplated by the contract. ↩
Canada Steamship Lines Ltd v The King [1952] AC 192. ↩
Nigerian courts may refuse enforcement of unconscionable terms on public policy grounds. ↩
Good faith principles are increasingly referenced in Nigerian commercial law. ↩
Karsales (Harrow) Ltd v Wallis [1956] 1 WLR 936. ↩
Suisse Atlantique Société d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361. ↩
Photo Production Ltd v Securicor Transport Ltd [1980] AC 827. ↩
As in Hain Steamship Co Ltd v Tate & Lyle Ltd (1936) 41 Com Cas 350. ↩
Similar to Karsales (Harrow) Ltd v Wallis [1956] 1 WLR 936. ↩