Expressed/Implied terms

• Expressed terms are terms agreed by both parties and incorporated into the contract either in writing or stated verbally (Interfoto)
• An implied term is a term that is implied into a contract either by common law or statute
• Ways a term can be implied into a contract - by common law

  1. Business efficacy
  2. Officious bystander
  3. By custom
  4. By prior dealings
• Business efficacy - A term will be implied into a contract if it needs to be implied for it work (from a business point of view).
• Business efficacy case

  The Moorcock (grounded ship)
• The officious bystander is a theoretical person who points out all the things surrounding a contract that are too obvious to put in it (Shirlaw)
• While a term might be reasonable, it will not be implied unless it is necessary (Shell v Lockstock)
• A reasonable person must understand the term to be the intention of the contract for it to be included (Egan v Static Control Components)
• Following Marks and Spencer v BNP Paribas:

  Common law will imply a term when it is strictly necessary

  • it is not enough that the partied would have agreed to it if it had been suggested

  The test is not one of absolute necessity, but whether without the term, the contract doesnt function.
• By custom - Terms that are commonly impled to contracts in a particular industry will be incorporated (Hutton)
• By prior dealings cases - a term can be implied if its use is regular and consistent even if it is after acceptance, this is less likley where one party is acting as a consumer (Hollier) and more likley if both parties are in the same industry (British Crane Hire)
• Terms can be implied by statute such as The Consumer Rights Act 2015
• Consumer Rights Act includes:

  s9 - goods are to be satisfactory quality

  s10 - goods are to be fit for a particular purpose

  s11 - goods to be as described

  s49 - services to be performed with reasonable care and skill

  s52 - services to be performed within a reasonable time
• (Thomson) - must be clear, prominent and available at the time of contracting