✔ 最佳答案
A condition is an essential term of the contract which goes to the root or the heart of the contract. A breach of condition entitles the innocent party to set aside the contract. On the other hand, a warranty is a lesser term of the contract, which if breached does not allow the innocent party to set aside the contract. The distinction between the two is not clear-cut and is probably a matter of degree. If the term concerned is part of the contract, I think it is a condition since without the battery the phone cannot be used at all.
However, I think this question is not actually about warranty and condition. It is about the incorporation of terms. The issue is whether the term on the piece of paper is incorporated into the contract between you and the company.
If it is incorporated, the company clearly cannot be held liable. If it is not, the court would probably recognize an implied term that the battery is included. The term would be implied by custom (Hutton v Warren). It is custom that a phone would include its battery when sold. The officious bystander test would be applicable as well. In this case, the company will be liable for a breach of condition and you can set aside the contract.
However, is the term incorporated? Parker v South Eastern Railway stated that a term would be incorporated only if the defendant used reasonable steps to bring the notice to the attention of the claimant. Interfoto v Stiletto Visual Programmes laid down the principle that a party who seeks to incorporate into a contract a term which is particularly onerous or unusual must prove that the term has been fairly and reasonably drawn to the attention of the other party. There is no doubt that the term in question is highly onerous. In my opinion, the company did not draw your attention to the term at all. Hence, it is very likely that the term is not incorporated into the contract and that the company has breached an implied condition.
