Terms — express and implied
How parties' express and implied obligations together constitute the contractual content that governs their rights.
Overview
Once formation has been established—through offer, acceptance, intention and consideration—the court's task is to determine the content of the contract: the terms that bind the parties. This note examines how English law ascertains and classifies those terms, addressing both those expressly agreed and those the law implies into the bargain.
An express term is one the parties have articulated, whether orally, in writing, or by conduct. Where the parties have reduced their agreement to writing, the court's starting-point is the written instrument, construed in accordance with modern principles of interpretation. But not every pre-contractual statement is a term; some are mere representations, giving rise (if false) to a claim in misrepresentation rather than breach of contract. The distinction turns on the maker's intention, objectively determined, to undertake contractual liability for the truth of the statement.
Implied terms fall into two principal categories. Terms implied in fact are unspoken obligations the court reads into a particular contract because they give effect to the parties' presumed intention; they fill gaps where the agreement is incomplete. Terms implied in law (sometimes called 'legal incidents') inhere in defined categories of contract—employment, landlord and tenant, sale of goods—and exist irrespective of the parties' actual intention, reflecting the law's normative judgment about the proper allocation of risk and obligation.
A third strand is terms implied by custom or trade usage, which occupy a grey zone between fact and law and rest on proof of a settled and notorious practice that the parties are deemed to have contracted with in mind.
Finally, statute has intervened extensively in the twentieth and twenty-first centuries to imply mandatory terms (especially in consumer transactions) and to regulate the incorporation and effect of exclusion clauses. This statutory overlay now stands alongside—and in places displaces—the common law of terms.
This note proceeds as follows: first, the historical evolution of the doctrines; second, the key common-law principles governing express and implied terms; third, the statutory framework (principally the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982, and the Consumer Rights Act 2015); fourth, the landmark authorities; fifth, doctrinal refinements and points of controversy; sixth, scholarly debates; and finally, worked examples and advice for examinations.
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