IMPLIED TERMS CASES

Question 1

Marks v Spencer
UK Supreme Court, 2015
FACTS

Answer 1

English case on the meaning of Belize.
Concerned a commercial lease and dispute for repayment of rent paid in advanced

Question 2

Marks v Spencer
UK Supreme Court, 2015 HELD

Answer 2

• Deviates from BP Requirements
• No Actual Intention: Implication doesn’t rely on true intent.
• Avoid Fairness: Terms can’t be implied based on fairness.
• Limited ‘Reasonable and Equitable’: Adds little value.
• Alternatives: Business efficacy and necessity justify terms.
• Caution with Officious Bystander: Apply carefully.
• Value Judgment on Necessity: Necessity is subjective.
• Practical Coherence: Imply terms if coherence is lacking.

Question 3

Realestate.com.au v Hardingham held

Answer 3

informal contract - judging whether there are implied terms by looking at the actions of parties, not their intentions

Question 4

Barton v Morris FACTS

Answer 4

• Oral agreement: Owners pay agent $1.2 million if property sells for $6.5 million or more.
• Property sold for $6 million.
• Contract did not specify outcome for sales below $6.5 million.

Question 5

Barton v Morris HELD

Answer 5

-Implied that some payment still needs to be made CANNOT BE MADE
- Objective intent of the parties viewed as a gamble/risk, not an uncommercial bargain.
-Emphasized strict necessity test for implying terms.
- Nothing happens if the contract does not explicitly state outcomes.
- Contract governs circumstances and provides answers for what should happen.