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Contract Disputes – what terms can be implied?

In a contractual dispute, it is possible for parties to rely on terms that are not written down but are implied into the contract.


A recent case, Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited and another [2015] UKSC 72, has clarified the requirements for implying a term into a contract. In this case the Supreme Court decided that judges, commentators and legal practitioners had got carried away by the judgment in an earlier case – Attorney General of Belize and others v Belize Telecom Ltd [2009] UKPC 10, and thought that it had expanded the basic principles for implying an unwritten term into a contract.
The Supreme Court in this most recent case, reiterated that there are only two reasons for implying a term into a contract:

  1. The term must be so obvious as to not need saying; or
  2. It must be essential to enable the contract to be performed (business efficacy).

The Supreme Court clarified that implying a term because it was “reasonable” was not sufficient.
If you would like advice before entering a contract to ensure it covers all that you require, please contact Nina Wilson.
If it is too late and you fear that your contract does not say what you think it should say, please contact Kevin Rogers.