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Part II Related Doctrines, 10 Implied Terms in Fact

From: McMeel on The Construction of Contracts (3rd Edition)

Gerard McMeel

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 11 August 2022

Subject(s):
Construction of contract — Formation of contract — Interpretation of contract

This chapter is concerned with the terms implied in fact, concentrating on the tests which the courts have articulated and employed, and providing some representative examples. This branch of the implication of terms is grounded on ascertaining the intentions of the parties, albeit an objective approach is deployed. Accordingly the implication of such terms is similar to, but distinct from, the ordinary process of interpretation of the express terms of a written contract. The chapter introduces the theory that ‘implication in fact’ is a species or sub-branch of construction, alongside the interpretation of the express terms. However, whereas the interpretation of the express language of the contract depends upon the perspective of the reasonable person trying to make sense of the instrument, traditionally the authorities on implied terms in fact insist on a threshold standard of necessity before any term is implied into a particular contract.

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