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The courts have developed an apparent distinction between terms implied "in fact" and those implied "in law". Terms implied "in fact" are said to arise when they are "strictly necessary" to give effect to the "reasonable expectations of the parties". Terms implied "in law" are confined to particular categories of contract, particularly ...
But before 1977, legislation to directly regulate unfair terms did not exist, [25] and jurisprudence on implied terms was underdeveloped. Even now, with one notable exception, [26] the courts have not accepted that they have any inherent jurisdiction to control unfair terms. It is only under legislation that authority appears to exist.
However, courts will generally imply in law that the promisor must act in good faith and reject the deal only if he is genuinely dissatisfied. As another example, if a contract promises a promisee a certain percentage of the proceeds of a promisor's business activities, this is illusory, since the promisor doesn't have to do anything: any ...
The presiding judge created a quaint concept of an officious bystander; if the officious bystander were to propose a term and both the parties would be likely to reply "oh, of course", the term is implied. Obviousness: The term is so obvious that it goes without saying. Furthermore, there must be one and only one thing that would be implied by ...
Reasonableness and equitableness: The implied term must be reasonable and equitable. In Biotechnology Australia Pty Ltd v Pace, [17] it was held a term that imposes a significant detriment or burden on the other party is unlikely to be equitable. Business efficacy: The implied term must be necessary for the business efficacy of the contract ...
In Southern Foundries (1926) Ltd v Shirlaw [2] MacKinnon LJ wrote, . For my part, I think that there is a test that may be at least as useful as such generalities. If I may quote from an essay which I wrote some years ago, I then said: "Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while ...
In addition to individualised implied terms that the courts construe to reflect the reasonable expectations of the parties, [19] the courts have long held that employees are owed additional obligations, such as a safe system of work [20] and payment of wages even when the employer has no work to offer. [21]
English contract law is the body of law that regulates legally binding agreements in England and Wales.With its roots in the lex mercatoria and the activism of the judiciary during the Industrial Revolution, it shares a heritage with countries across the Commonwealth (such as Australia, Canada, India [1]), from membership in the European Union, continuing membership in Unidroit, and to a ...