Express and Implied Terms

Express and Implied Terms

Distinction between Express & Implied Terms

• Terms may be express or implied, they must be incorporated to be a term.
• If the terms are not fulfilled there is a breach of a contract
• In L’Estrange v Graucob, the party was still bound by terms event though she did not read the contract.

Is it a binding term, has it been incorporated?

1. Is it a mere puff or an invitation to treat such as Fisher v Bell.
2. Why was the promise in Carlill held to be of legal significance? 
3. Or was it an expression of an opinion? Bisset v Wilkinson [sheep case] or Esso Petroleum v Mardon

• Parole Evidence rule 

• Where there is agreement in writing, presence of other alleged terms of the agreed cannot be abducted.
• The only ways to avoid this role are:
• Part of contract: J Evans v Andrea Merzario, transportation case involving an oral promise suggesting how the machines would be carried
• Collateral Contracts (rarely used):  This is where the first contract is say oral and second is written, the first one is called a collateral contract
• Entire Agreement Clauses: To avoid having other terms looked at; Inntrepreneur Pub v East Crown

• Importance of the term 

• Couchman v Hill [calf case]
• Bannerman v White [beer case]

• Knowledge of the statement maker

• Dick Bentley Productions v Harold Smith [car dealer + miles]
• Esso Petroleum v Mardon - buying a petrol station site where petrol station would be build, was made on the assumption that cars could enter from the main road.

• Was reasonable notice of the term given?

• Parker v South Eastern Ry [Clockroom case + objective test]
• Chapelton v Barry UDC [beach chair case]

• Is the term onerous?

• Interphoto Picture Library v Stiletto Visual Programmes [holding charge]
• Denning in Speerling v Bradshaw, the more onerous the term the more notice you have to give.
• AEG v Logic Resources

• Timing?

• Term must not come too late 
• Olley v Marlborough Court [hotel]
• Thorton v Shoe Lane Parking

• Incorporation by course of dealings

• McCutcheon v David MacBrayne
• Petrotrade v Taxaco

• Incorporation by common understanding

• British Crane  Hire v Ipswich Plant Hire [contract sent after crane]