Contract - terms: terms implied by common law Flashcards
What are expressed terms?
Specifically agreed between parties
What are implied terms?
Aren’t mentioned in contract but are expected
What are terms implied by common law?
Business efficacy / the officious bystander test
By custom
Prior dealings between parties
What is the business efficacy/officious bystander test?
Courts imply a term into the contract if it is necessary for contract to work on a business-like-basis
What is the two part test for business efficiacy/officious bystander test?
Is term necessary to make contract effective
If parties to the contract had thought about it, would they have agreed that this term should be in the contract
What is some AO3 for the business efficacy/officious bystander test?
SC endorsed this test, top-domestic court, most experienced judges
Fair in commercial/business situations as parties should be aware that implied terms are incorporated into the contract
What is business efficacy?
Term must be necessay to give contract business effect
If contract makes business sense without term, courts wont imply term
What happened in The Moorcock?
Ship became damaged due to rocks
Court implied term in fact, that the riverbed would be safe for mooring
Court introduced business efficacy test
What happened in Schawel v Reade?
Horse was diseased so contract was breached as couldn’t use it for its purpose
D breached contract - was implied term
What is some AO3 for business efficacy?
Good test as judges are giving effect to what it seems like the parties to agreement wanted when agreement was made
Upholds freedom of contract beacuse they’re considering what they actually wanted
Judges won’t always know true intention of parties, judges have to pick most believable arguement
What is the officious bystander test?
Had another party been there at that time contract was made, would they have presumed the term in qs should be implied
If so, court will imply term
Must be obvious that both parties would have agreed to term
What is some AO3 for the officious bystander test?
Not a straightforward test, dated approach. Purely hypothetical
Hard for judge to not just give their opinion when there wasn’t a third party present
Judges are most experienced, reduces lengthy litigation
What happened in Hollier v Rambler?
Failure to sign document on this ocassion meant that the exclusion clause didn’t apply
What is soem AO3 for Hollier v Rambler?
Argued to be unfair
Hollier went to garage a no. of times and had no issue signing agreement. Agreement hadn’t changed
Could have easily gone other way if made agreement face to face
Inconsistencies - ROL
What happened in Shell UK v Lostock Garage?
Shell would have never agreed to such a term which they gave Lostock their best price
Claim failed
