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正确答案：

This question requires candidates to consider the law relating to terms in contracts. It specifically requires the candidates to distinguish between terms and mere representations and then to establish the difference between express and implied terms in contracts.
(a) As the parties to a contract will be bound to perform. any promise they have contracted to undertake, it is important to distinguish between such statements that will be considered part of the contract, i.e. terms, and those other pre-contractual statements which are not considered to be part of the contract, i.e. mere representations. The reason for distinguishing between them is that there are different legal remedies available if either statement turns out to be incorrect.
A representation is a statement that induces a contract but does not become a term of the contract. In practice it is sometimes difficult to distinguish between the two, but in attempting to do so the courts will focus on when the statement was made in relation to the eventual contract, the importance of the statement in relation to the contract and whether or not the party making the statement had specialist knowledge on which the other party relied (Oscar Chess v Williams (1957) and Dick
Bentley v Arnold Smith Motors (1965)).
(b) Express terms are statements actually made by one of the parties with the intention that they become part of the contract and
thus binding and enforceable through court action if necessary. It is this intention that distinguishes the contractual term from
the mere representation, which, although it may induce the contractual agreement, does not become a term of the contract.
Failure to comply with the former gives rise to an action for breach of contract, whilst failure to comply with the latter only gives rise to an action for misrepresentation.

Such express statements may be made by word of mouth or in writing as long as they are sufficiently clear for them to be enforceable. Thus in Scammel v Ouston (1941) Ouston had ordered a van from the claimant on the understanding that the balance of the purchase price was to be paid ‘on hire purchase terms over two years’. When Scammel failed to deliver the van Ouston sued for breach of contract without success, the court holding that the supposed terms of the contract were too
uncertain to be enforceable. There was no doubt that Ouston wanted the van on hire purchase but his difficulty was that
Scammel operated a range of hire purchase terms and the precise conditions of his proposed hire purchase agreement were
never sufficiently determined.
Implied terms, however, are not actually stated or expressly included in the contract, but are introduced into the contract by implication. In other words the exact meaning and thus the terms of the contract are inferred from its context. Implied terms can be divided into three types.
Terms implied by statute
In this instance a particular piece of legislation states that certain terms have to be taken as constituting part of an agreement, even where the contractual agreement between the parties is itself silent as to that particular provision. For example, under s.5 of the Partnership Act 1890, every member of an ordinary partnership has the implied power to bind the partnership in a contract within its usual sphere of business. That particular implied power can be removed or reduced by the partnership agreement and any such removal or reduction of authority would be effective as long as the other party was aware of it. Some implied terms, however, are completely prescriptive and cannot be removed.
Terms implied by custom or usage
An agreement may be subject to terms that are customarily found in such contracts within a particular market, trade or locality. Once again this is the case even where it is not actually specified by the parties. For example, in Hutton v Warren (1836), it was held that customary usage permitted a farm tenant to claim an allowance for seed and labour on quitting his tenancy. It should be noted, however, that custom cannot override the express terms of an agreement (Les Affreteurs Reunnis SA v Walford (1919)).
Terms implied by the courts Generally, it is a matter for the parties concerned to decide the terms of a contract, but on occasion the court will presume that the parties intended to include a term which is not expressly stated. They will do so where it is necessary to give business efficacy to the contract.

Whether a term may be implied can be decided on the basis of the officious bystander test. Imagine two parties, A and B, negotiating a contract, when a third party, C, interrupts to suggest a particular provision. A and B reply that that particular term is understood. In just such a way, the court will decide that a term should be implied into a contract.
In The Moorcock (1889), the appellants, owners of a wharf, contracted with the respondents to permit them to discharge their ship at the wharf. It was apparent to both parties that when the tide was out the ship would rest on the riverbed. When the tide was out, the ship sustained damage by settling on a ridge. It was held that there was an implied warranty in the contract that the place of anchorage should be safe for the ship. As a consequence, the ship owner was entitled to damages for breach of that term.
Alternatively the courts will imply certain terms into unspecific contracts where the parties have not reduced the general agreement into specific details. Thus in contracts of employment the courts have asserted the existence of implied terms to impose duties on both employers and employees, although such implied terms can be overridden by express contractual provision to the contrary.

正确答案：
3 MULLIGAN CO
(a) Matters to be discussed would include the following:
The exact content of the business plan which could include:
– Description of past business performance and key products
– Discussion of the new product
– Evidence of the marketability of the new product
– Cash flow projections
– Capital expenditure forecasts
– Key business assumptions.
The form. of the assurance report that is required – in an assurance engagement the nature and wording of the expected
opinion should be discussed. Webb & Co should clarify that an opinion of ‘negative assurance’ will be required, and whether
this will meet the bank’s lending criteria.
The intended recipient of the report – Webb & Co need to clarify the name and address of the recipient at LCT Bank. For the
limitation of professional liability, it should be clarified that LCT Bank will be the only recipient, and that the assurance opinion
is being used only as part of the bank’s overall lending decision.
Limiting liability – Webb & Co may want to receive in writing a statement that the report is for information purposes only, and
does not give rise to any responsibility, liability, duty or obligation from the firm to the lender.
Deadlines – it should be discussed when the bank need the report. This in turn will be influenced by when Mulligan Co needs
the requested $3 million finance. The bank may need a considerable period of time to assess the request, review the report,
and ensure that their lending criteria have been fully met prior to advancing the finance.
Availability of evidence – Mulligan Co should be made aware that in order to express an opinion on the finance request, they
must be prepared to provide all the necessary paperwork to assist the assurance provider. Evidence is likely to include
discussions with key management, and written representations of discussions may be required.
Professional regulation – Webb & Co should discuss the kind of procedures that will be undertaken, and confirm that they
will be complying with relevant professional guidance, for example:
– ISAE 3000 Assurance Engagements other than Audits or Reviews of Historical Financial Information
– ISAE 3400 The Examination of Prospective Financial Information
Engagement administration – any points not yet discussed in detail when deciding to take the assurance engagement should
be finalised at the meeting. These points could include the following:
– Fees – the total fee and billing arrangements must be agreed before any work is carried out
– Personnel – Webb & Co should identify the key personnel who will be involved in the assignment
– Complaints procedures – should be briefly outlined (the complaints procedures in an assurance engagement may differ
from an audit assignment)
– Engagement letter – if not already signed by both Webb & Co and Mulligan Co, the engagement letter should be
discussed and signed at the meeting before any assignment work is conducted.
Tutorial note: the scenario states that Webb & Co have already decided to take the assurance assignment for their existing
client, therefore the answer to this requirement should not focus on client or engagement acceptance procedures.

正确答案：

(c) Self-assessment tax return
(1) Thai Curry Ltd’s self-assessment corporation tax return for the year ended 30 September 2005 must be submitted by
30 September 2006.
(2) If the company does not submit its self-assessment tax return until 31 May 2007, then there will be an automatic fixed
penalty of ￡200 since the return is more than three months late.
(3) There will also be an additional corporation tax related penalty of ￡4,415 (44,150 × 10%) being 10% of the tax unpaid,
since the self-assessment tax return is more than six months late.
Corporation tax liability
(1) Thai Curry Ltd’s corporation tax liability for the year ended 30 September 2005 must be paid by 1 July 2006.
(2) If the company does not pay its corporation tax until 31 May 2007, then interest of ￡3,035 (44,150 at 7·5% = 3,311
× 11/12) will be charged by HM Revenue & Customs for the period 1 July 2006 to 31 May 2007.

正确答案：B