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JC Smith's The Law of Contract

JC Smith's The Law of Contract (3rd edn)

Paul S. Davies
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date: 26 May 2024

p. 18413. Implicationlocked

p. 18413. Implicationlocked

  • Paul S. Davies

Abstract

This chapter examines whether a term should be imported into the contract, although it was never expressed in words; should the term be implied? A term can be implied into a particular contract because it is necessary to give effect to the parties’ intentions. This is known as ‘implication in fact’. Whether a term should be implied ‘in fact’ has traditionally depended upon whether the term was so obvious to both parties that it went without saying, or whether the term was necessary to give ‘business efficacy’ to the contract. A term might be implied ‘in law’ into all contracts of a particular type. Such terms might be implied as a result of statute or judicial decisions. Where a judge decides that a term should be implied ‘in law’, courts can take into account policy reasons when deciding whether an implied term is necessary for the type of contract at issue.

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