Contract essentials — 6 June 2013
When interpreting a contract, it’s not just the express terms of the contract that are important. Careful consideration should also be given to implied terms. It is important to know when terms will be implied, how they will work alongside the express terms in the contract and when they can be excluded. Terms might be implied into a contract for a number of reasons, including to reflect the intentions of the parties at the time the contract was entered into, to achieve fairness between the parties or to fill a gap in a contract so that the contract works in practice.
The court may imply a term into a contract based on: usage or custom; the parties’ previous course of consistent dealing; the intention of the parties, known as a term implied ‘in fact’; common law, where the implied term is a necessary part of a particular type of contract; or statute, for example the Sale of Goods Act 1979 (which implies terms as to the quality of goods supplied and their fitness for purpose).
The recent case of Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd (trading as Medirest) (2013) highlights the reluctance of the courts to imply terms into a contract where express terms will suffice…
If you are registered and logged in to the site, click on the link below to read the rest of the Mills & Reeve briefing. If not, please register or sign in with your details below.
News from The Lawyer
Analysis from The Lawyer
The trend for unbundling legal work is advancing through the law firm ranks but there is still resistance in some quarters - namely in-house. We asked why