Contracts: express and implied terms
A practice note that explains the distinction between express and implied terms in contracts and the various ways terms can be implied, including by custom or usage, a previous course of dealing or statute. The note provides a detailed analysis of terms implied in fact, exploring the development and application of the business efficacy and officious bystander tests, as clarified by the Supreme Court in Marks & Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd [2015] UKSC 72 and in more recent cases. This practice note also addresses the implication of duties of good faith in relational contracts, the practicalities of excluding implied terms and the how the courts have resolved conflicts between express and implied terms.
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