Implied Terms

TABLE OF CONTENTS

1) Introduction

2) Implied Terms

3) Custom / Usage

4) Court

5) Past Dealings

6) Statute

7) Goods Act

8) Trade Practices Act

9) Conclusion

10) Recommendations

11) Bibliography

INTRODUCTION

Agreements are formed in almost every communication; electronic, written or oral; daily. Once an agreement fulfills the components required of a contract, therein lies the existence of terms of a contract.

These terms depict an obligation between parties involved in the form of Express terms or Implied terms. Express terms are material terms stated by the parties involved, and can be interpreted in 3 ways; Oral, Written, Oral and Written.

Implied terms are terms normally not stated or not known by the parties, and may be derived from Custom/Usage, Court, or Statute. Custom terms are referenced to conventions or usages in a particular industry or trade. Court terms are adopted when an oversight of the parties occur, in order to give 'business efficacy' to the contract based on prior or past dealings. Statute terms are referred to the various states, territories and Commonwealth Trade Practices Act when the contract is formed.

When a sale of goods involving consumer and corporations, Trade Practices Act and the Goods Act ; statutes established by the Commonwealth and its State parliament; may be used to protect consumers from the conduct of these contracts. Act s.4B of TPA defines a 'consumer' as someone who acquires goods or services for less than $40,000. Act s.85(1) of Goods Act applies if goods are worth less than $20,000.

IMPLIED TERMS

The case of BROGDEN v METROPOLITAN RAILWAY illustrates one of the early cases of implied terms; in which the conduct of a party is sufficient for the courts to hold an implied terms judgement, despite a lack of an offer & acceptance. The unilaterally signed agreement was actually a counter-offer, despite there was no mutual agreement to the changes of terms by Brogden. But the courts held that the conduct of Metropolitan Railway as valid.

A simple illustration to determine if a term should be implied into a contract is in the case of SHIRLAW v SOUTHERN FOUNDRIES , where MacKinnon LJ quoted, "...in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying...".

Custom/Usage

In a particular industry, references as to what is 'common practice' or 'usages' of the companies are dictated by themselves and not by the courts. When they act upon a contract based on their trade understanding, certain standards exist. In the case of BRITISH CRANE HIRE CORP LTD v IPSWICH PLANT HIRE LTD , a hire form sent to hirer was merely to facilitate the formal procedures and understanding. Neither the terms were read, nor signed by the hirer. An implied term, that hirer is liable for any damages once taking hold of an equipment, exists as an industry standard term despite not signing the contract. This act of negligence by the hirer may be costly in the future.

However, a failed attempt to use industry convention came in the case of SUMMERS v COMMONWEALTH OF AUSTRALIA . Measurements of supplied goods could not be implied as an industry convention because an express term has been set by the plaintiff; stating a given measurement to follow. This follows that in a contract, an express term supercedes an implied term.

Court

Although certain terms are implied as industry convention, if the courts view them as being unfair or nonsensical the courts shall imply its terms to give business efficacy, or commercial realism, into the contract. In the case of 'THE MOORCOCK' , the wharfinger's expertise of allowing vessels to berth must have implied into the contract that they know the jetty and its seabed well in order to provide sound advice and reasonable care during a vessel's berthing. This obviously did not happen.

Where no term was submitted into the contract and a mistaken assumption occurred, the High Court rejected the plaintiff's argument in the case of CODELFA CONSTRUCTION v BRISBANE CITY COUNCIL . The plaintiff argued on the fact that a term should be implied to borne his losses.

In the case of BP REFINERY v HASTINGS SHIRE COUNCIL , the Privy Council gave a description of what implied terms must be. It must be:

(1) Reasonable and equitable

(2) Necessary to give business efficacy

(3) So obvious that it goes without saying

(4) Capable of clear expression

(5) Not contradicting any express term

The above conditions describe the simple definition of implied terms in providing business efficacy into a contract.

Past Dealings

When a term has been stated/shown many times before to the plaintiff, the courts held it as acceptable evidence, despite the fact that the plaintiff had not seen or known of the clause, as in the case of BALMAIN NEW FERRY CO LTD v ROBERTSON . Whether or not Balmain has read the clause when he passed through the gates everyday, countless people have also traveled through and seen the contract daily. Thereby giving it an instant validity due to Balmain's past dealings.

However in relying on the exclusion clause as defence, the defendant failed in the case of HOLLIER v RAMBLER MOTORS (AMC) . Although there were past dealings involved, the frequency in which it happened was too sparse to justify as past dealings.

A case that questions the 'What if?' to the ability of relying on past dealings as a defence comes in the case of OLLEY v MARLBOROUGH COURT LTD . Without the