StudentShare
Contact Us
Sign In / Sign Up for FREE
Search
Go to advanced search...
Free

Implied by Law - Term Paper Example

Cite this document
Summary
The paper "Implied by Law" presents that pertinent issues of a contract include the rights and obligations of the contractual parties, which are contained in the terms of that particular contract. Whether clearly articulated in an open manner or not…
Download full paper File format: .doc, available for editing
GRAB THE BEST PAPER92.1% of users find it useful
Implied by Law
Read Text Preview

Extract of sample "Implied by Law"

Employment/ Labour Laws Introduction Pertinent issues of a contract include the rights and obligations of the contractual parties, which are contained in the terms of that particular contract. Whether clearly articulated in an open manner or not, the terms of a contract bind the parties to a contract to such an extent that they ensure that the rights and obligations are enjoyed and obeyed. Terms of a contract are therefore central to the contracting concept at any point throughout the contractual process and duration. Terms of a contract are generally taken to be express or implied by law1. When clearly articulated by the parties on a certain written or oral agreement, the contractual terms are said to be express and bind the parties to the extent of their reasonable provisions. In cases where the express terms are enforceable, the parties must come to an agreement either prior to or at the contracting time and conclude their agreement2. Express terms are easily identified by evidence of the contractual parties consent prior to or at conclusion of the contract. Examples of express terms include written terms which are formulated and designed in form of a document. Oral concurrence is also considered in express terms to the extent of their reasonableness. Implied contract terms include those terms that are deemed to be enforceable by the law notwithstanding the fact that no clear discussions took place or writing on the same exists. Implication is done at common law or by legislation. Origin Generally, contractual terms are clearly stipulated in standard contracts, where parties come into concurrence on certain pertinent issues. It is however difficult to contemplate and expressly state all the contingencies in a contract due to intricacies involved in various cases. The operation of the contract would therefore be exposed to loopholes that could alter the rights and obligations on the parties. For justice to prevail, the courts systems reign in and offer directions on problematic contracts having reached a snug on the premise of inadequacy of the express terms. Employment contracts are sensitive like any other contracts are and the manner in which the terms are considered, especially the controversy surrounding implied terms has been in existence. The application of implied terms in employment contracts is particularly difficult due to the unique nature of the contract. Many contractual parties are unable to determine their obligations and even rights when implied terms of a contract are in contention. But ignorance of the law is no defence as a major maxim goes- ignorantia juris non excusat3. This work explores the types of implied terms of a contract and suitable case law examples used to illustrate the actual situation in their applications. Types of Implied Terms in Case Generally, three classes of implied contract terms exist as provided for by law or fact. Under each provision of implied terms, there are specific types of implied terms. For instance, under terms of contract implied by law, there are universal terms as well as generic terms while BP refinery test is used to determine if terms implied by fact exist. i) Universal Terms The law assumes that all contracts must bear inherent implied terms by the virtue of being contractual engagements. Parties to a contract are bound by universal terms merely by acting in a contractual manner and neither of them can be heard to say that they are not bound. Specific conditions dictate the existence of universal terms, for instance the duty of cooperation and the duty to act in good faith. The role of universal terms is to assist in the enforcement of express terms and is only implied to the extent of their consistence with express terms. Even if the exclusion of some terms appears to be confused with the duty to act in good faith, parties to a contract must bear their responsibility in the contract. As the judge stated in Butt V McDonald “It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his or her part to enable the other party to have the benefit of the contract.”4 Secured Income V St. Martins Secured Income offered and eventually sold a property consisting of a big block of offices to the defendant. A part of the settlement amounting to $ 170, 000 was outstanding by 26th January 1973 and was payable by 26th June 1973 by a certain formula if aggregate rents fell below the figure by that time. It was also stipulated that any leasing to a third party after the agreement should be approved by the defendant. By the settlement time, aggregate rents fell below agreed figure and Secured Income decided to lease vacant premises to a level that would secure the $170,000 settlement from reductions. Contrary to this, the defendant rejected the move to effect the lease on the premise that the remaining vacant offices could generate a figure of zero when the agreed formula was applied. On the ground of unfair treatment by St. Martins, Secure Income filed a suit for damages. This is because the complainant alleged that the defendant would be compelled by the implied term that cooperation was required to ensure that tenants were secured in to the premises (Lewinson, 2004, p61). The presenting issue in this case was whether there existed an implied term that would compel the defendant to cooperate with the complainant in ensuring that the contract went through. In the judgment made, the judge held the position that a duty to cooperate is implicit in any contract but the defendant observed the part of the contract expected and did not breach this term by rejecting the lease on reasonable grounds. According to Mclnnis the delicate issue of cooperation and arising obligations are classified under positive and negative duties5. Under the duty to act in good faith, the implied term comes into enforceability to deter opportunists from exploiting the other party to a contract. In the United States, the Uniform Commercial Code has a provision that states: “Every contract imposes on each party a duty of good faith and fair dealing in its performance and enforcement.”6 However, the implied term has been enforced in Australia to bind parties to an insurance contract and fiduciaries while in Europe, civil codes observe the principle in many instances. ii) Generic Terms Specific types of contracts exhibit specific terms which remain enforceable whether expressly stated or excluded. In such instances, the implied terms are assumed to be a necessity that otherwise considerably alter the operation of the contract. Even if the generic terms require a case oriented approach in determination of their existence, their scope is generally wide and unspecified. These terms are implied on tow bases which include; trade custom or certain contract types. They mainly ensure observance of instructions in employment contract, ensure fitness and merchantability for contracts of goods sale as well as habitation fitness for house letting contracts. Con-Stan Industries V Norwich In this case, Con-Stan made a payment for an insurance premium with a broker who connected Norwich insurance company for the same. Before the insurance company (Norwich) had received the payment from the broker, Con- Stan went into liquidation. The insurance company went to court seeking to establish to the insured that there is an implied term providing that where the broker arranges for an insurance agreement on behalf of the insurer, the broker is liable to pay the premium. According to Gillies the presenting challenge was to establish if there is an implied term to the effect that insurance contracts pass the liability from the insured to the broker7. In the ruling, since it could not be ascertained whether it is generally accepted practice that insurance companies only collect premiums from brokers, the judge was of the opinion that the term could not be enforceable. iii) Implication by Fact Terms implied by virtue of fact are generally specific and unique such that they cannot be excluded from a contract by lack of express inclusion. The principle of such terms is based on the premise of the general presumption of intentions held by the parties to a contract by the conclusion of the contract. BP Refinery v Shire of Hastings BP Oil Company was contracted by the state to for an oil facility project with a provision allowing the company to involve an external company for up to thirty percent. The defendant subjected BP at a lowered preferential taxation rate upon which BP Australia took over BP after six years prompting the defendant to revert to normal taxation. The presenting challenge was to determine if the Shire could imply that preferential treatment ended with end of BP ownership of the refinery and if BP could claim it had a thirty percent stake in BP Australia8. It was held that BP had implied terms over its connection to BP Australia and that the preferential taxation was to be upheld. This became the famous BP refinery test that was enforced in Coldefa Constructions V SRA. Works Cited Adelaide Law Review Association. An annual survey of Australian law. Adelaide, Australia: Law Book Co. 1994. Clarke, J. 2010. Terms of a contract. Australian Contract Law, Viewed 9th January, 2010 http://www.australiancontractlaw.com/law/implied.html Gillies, P. Concise contract law. Sydney, Australia: Federation Press. 1988. Lewison, K. The interpretation of contracts. London, UK: Sweet and Maxwell Publishers. 2004. Matthews, P. “Ignorance of the Law is No Defence.” Legal Studies, 3(2):174-195. 1983. Mclnnis, A. The new engineering contract: a legal commentary. London, UK: Thomas Telford Publishing. 2001. Riordan, J. 2004. “Part VII- Implied Terms.” Viewed 9th January, 2010 http://www.jaani.net/resources/law_notes/contracts/12_Implied_Terms.pdf Read More
Cite this document
  • APA
  • MLA
  • CHICAGO
(Implied by Law Term Paper Example | Topics and Well Written Essays - 1500 words, n.d.)
Implied by Law Term Paper Example | Topics and Well Written Essays - 1500 words. https://studentshare.org/law/1575108-employmentlabour-law
(Implied by Law Term Paper Example | Topics and Well Written Essays - 1500 Words)
Implied by Law Term Paper Example | Topics and Well Written Essays - 1500 Words. https://studentshare.org/law/1575108-employmentlabour-law.
“Implied by Law Term Paper Example | Topics and Well Written Essays - 1500 Words”. https://studentshare.org/law/1575108-employmentlabour-law.
  • Cited: 0 times

CHECK THESE SAMPLES OF Implied by Law

Homicide Law within England and Wales

Especially the police, who are aware of the committed crime and have seen the atrocity and effect of it, feel totally deceived and disowned by law.... I would like to present my research proposal on the topic of An Analysis of Homicide law within England and Wales: Should there be Reform I would to argue that there is a need for reform.... I would go through the difficulties and drawbacks the present day homicide law is facing and its limitations in England and Wales and would like to explain why and how it needs reviewing....
4 Pages (1000 words) Essay

Implied and ExpressTerms

Terms Implied by the Court: These terms are classified into two types of implied terms: terms implied as fact and terms Implied by Law following the next criteria:A.... Terms implied by Custom:"The terms of a contract may have been negotiated against the background of the customs of a particular locality or trade.... The difference between terms implied in law and terms implied in fact is based on objective and distinctive tests that are often applied to them in order to reach a definite conclusion about the different interests of the parties....
4 Pages (1000 words) Essay

Ferrari Daytona Pricing Entitlement

No formal, oral agreement had been established that agreed on a firm price and also Crockett's establishment of… If the two individuals had formed an agreement that established a firm price and agreement that such a price would be paid, this would represent an enforceable contract Implied by Law.... If the two individuals had formed an agreement that established a firm price and agreement that such a price would be paid, this would represent an enforceable contract Implied by Law....
2 Pages (500 words) Essay

Hypothetical

?More limited freedom – numerous provisos Implied by Law into contractual relations.... xtensive freedom– only a few provisos implied by rule into contractual relations.... A civil law system is normally more regulatory and prescriptive than a common law system.... Describe the differences between the common law and civil law systems....  Differences between Common law and Civil LawWritten constitutionCommon law is not always a written constitution....
2 Pages (500 words) Essay

Contractual Aspects and Business Negligence

This implies that the parties to the contract intend the contract to be enforceable by law.... A contract will usually contain various terms, which can be either implied or express.... The paper evaluates contractual aspects and business negligence.... It has such sections: elements of valid business contracts; application of contracts in business situations; principles of liability in business negligence; application of principles of liability in business situations....
9 Pages (2250 words) Coursework

Aspects of Contract and Negligence of Business

Contract is essentially a promise between two or more parties, and the promise is legally bound with the implication that court of law will intervene in case there is any breach of the promise (Ryan, 2005, p.... Acceptance occurs when the party responding to the offer expresses agreement to the offer, and the acceptance must be explicit and unequivocal as law will not consider an offer as accepted merely because it has not been expressly refused....
17 Pages (4250 words) Assignment

The Development and Significance of the Implied Duty of Mutual Trust

erms Implied by Law apply in cases where a contractual term implied on the basis and not on the intention of the parties4.... hellip; The terms of mutual trust and confidence have taken a central duty in the law of contract of employment.... It is the most powerful ruler in the modern law of employment contracts.... The implied duty has formed part of the law of the contract of employment for over 70 years.... A case law applies in Moorcock case six....
8 Pages (2000 words) Essay

The Basis of Trust and Equity

Basis of trust and equity is concerned with regulation of the conscience where the individual's common law might allow the individual to act unconscionably though in accordance with the letter of the law.... The paper "The Basis of Trust and Equity" describes that the settlor has to put it in writing though he may not disclose all the contents of the written will....
6 Pages (1500 words) Essay
sponsored ads
We use cookies to create the best experience for you. Keep on browsing if you are OK with that, or find out how to manage cookies.
Contact Us