Implied and expressed terms - definitions Flashcards
What is an expressed contract term?
A term of a contract that the parties have explicitly agreed to, either orally or in writing.
What is an ancillary contract term?
A contract term found in written materials that are physically separate from an employment contract but that include rules that relate to the employment relationship.
Examples of ancillary documents include employee handbooks, benefits handbooks, and human resources policy manuals.
What is an implied contract term?
A default contract term invented by common law judges and read into an employment contract when the written terms of the contract do not address the specific issue.
What is the business efficacy test?
An approach used by common law judges to justify the implication of a contract term on the basis that the term is necessary to make the contract effective.
What is the officious bystander test?
An approach used by common law judges to justify the implication of a contract term based on the presumed intention of the parties.
What does ‘contract term implied in fact’ mean?
A term implied into a contract by a judge that reflects the presumed intentions of the parties.
What does ‘contract term implied in law’ mean?
A term implied into a contract by a judge as a matter of the legal duty that the judge believes ought to be imposed due to the nature of the particular type of contract.
What is wrongful dismissal?
A type of lawsuit by an employee against a former employer alleging that the employer terminated their contract without complying with the implied term requiring ‘reasonable notice.’
What is summary dismissal?
The termination of an employment contract by an employer without notice to the employee in response to a serious breach of contract by the employee.
What is insubordination?
A breach by an employee of the implied or expressed term of an employment contract requiring the employee to obey an employer’s orders and instructions.
What is demotion?
A reassignment of an employee’s position by an employer to another position with lower pay, less prestige, or less responsibility.
What is constructive dismissal?
A fundamental change to an employment contract by an employer that an employee may treat as an effective termination of the contract.
What is a layoff?
A non-disciplinary suspension imposed by an employer of the employee’s right to come to work, usually due to a lack of available work.
What is unpaid suspension?
A temporary suspension of an employee’s right to come to work imposed by the employer as a form of discipline for employee misconduct.
What is quantum meruit?
An entitlement to be paid a fair market rate for work performed when the amount is not stipulated in a contract.
What is an ambiguous contract term?
A contract term capable of multiple interpretations.
What is the parol evidence rule?
A common law rule of evidence in which a judge is prohibited from hearing evidence that the parties intended a meaning different than what is indicated in the clear language of the written contract.
What is the contra proferentem doctrine?
A rule of contract interpretation in which a judge interprets an ambiguous contract term in the manner most favourable to the party that did not draft the contract.
What is a restrictive covenant?
A contract term that restricts the right of a former employee to engage in certain competitive practices against their former employer.
What is public policy illegality?
A common law right of judges to void all or part of a contract because it is contrary to public policy.
What is repudiation of contract?
A breach of contract that demonstrates an intention by the party to treat the contract as at an end and to no longer be bound by the contract.
What is a fixed-term contract?
A contract with a specific defined end date.
What is a fixed-task contract?
A contract to perform a defined task that comes to an end when the task is complete.
What is a notice of termination clause?
A clause in an employment contract that specifies how much notice is required to be given to the other party in order to lawfully terminate the contract.
What is mandatory retirement?
A legal rule in a statute or contract that terminates an employment contract upon the employee reaching a specified age.
What is an indefinite-term contract?
A contract that has no specified end date.
What is the changed substratum doctrine?
A legal doctrine in employment law in which an employee’s job responsibilities have changed so substantially that the courts treat the original notice of termination clause as having lapsed.
