Part II Related Doctrines, 9 Implication of Terms: General Principles and Implied Terms at Law

Subject(s):

Construction of contract — Formation of contract — Interpretation of contract

This chapter considers the implication of terms. It first looks to the general principles of the implication of terms, noting that courts have resorted to implied terms even in the context of very elaborate contracts in writing. The chapter then considers how implied terms are used in the context of law, showing that it is easier to state the law in terms of what terms have been implied in law, by reference to statutory codification or authoritative appellate judicial pronouncements, than to provide practical guidance on when the courts will identify a new implied term in law in the future. However, in order to illustrate the scope and flexibility of the technique, a few representative common law and statutory examples are introduced in this chapter. Next, the governing principles for implying new terms at law are considered.