Question 1

Which of the following is not true about implying terms?&#10;A) The court can improve a bad bargain by implying a term.&#10;B) The officious bystander test is a strict one.&#10;C) The court is implementing the intentions of the parties.&#10;D) The omitted matter was something so obvious it goes without saying.

Accepted Answer

The court cannot improve a bad bargain by implying a term; its role is to enforce the contract as agreed upon by the parties, not to rewrite contracts to make them fairer or more reasonable.

Question 2

What are the distinctions between implication and interpretation of terms (at least on the understanding of the majority of the Supreme Court in Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd)? Please select all that apply.

A) The former comes into play where the parties are silent; the latter requires the court to respect the language chosen by the parties.
B) The former is grounded in necessity, the latter in reasonableness.
C) Interpretation of an express term is the logically prior step to implication.
D) Judges are able to imply terms where it is reasonable to do so.

A,B,C

Accepted Answer

- Implication of terms occurs when the contract does not explicitly cover a scenario, necessitating the court to fill the gap based on necessity. Interpretation, on the other hand, involves understanding and applying the terms that the parties have expressly included in the contract, respecting the language they chose. The process of interpretation is logically prior because the court first seeks to understand the explicit terms before considering whether additional terms should be implied to fill any gaps.

Question 3

Which of the following is not true of customary terms?&#10;A) Terms may be implied if they are customary in the particular trade or profession of the party who drafts the contract.&#10;B) The alleged implied term must not be inconsistent with an express term.&#10;C) The imported term must be well-known.&#10;D) The customary term must be recognised as binding.

Accepted Answer

Customary terms can be implied into contracts based on the practices and norms of a particular trade or profession, but they are not limited to being implied only if the party who drafts the contract belongs to that trade or profession. The implication of customary terms is based on their recognition and acceptance within a specific sector, not on who drafts the contract.

Question 4

Which of these options are true of terms implied in law? Please select all that apply.&#10;A) They are concerned with implying terms into particular types of contracts.&#10;B) They do not necessarily reflect the intentions of the particular parties to the contract.&#10;C) They are implied regardless of express terms to the contrary.&#10;D) Terms implied in law may raise questions of reasonableness, fairness and the balancing of competing policy considerations.

Accepted Answer

Terms implied in law are indeed concerned with implying terms into particular types of contracts, often to fill gaps that the law perceives as needing to be filled for the type of contract in question (A). They do not necessarily reflect the intentions of the particular parties to the contract because they are implied by law to ensure fairness, efficiency, or to uphold public policy, rather than to give effect to the parties' actual intentions (B). Terms implied in law may indeed raise questions of reasonableness, fairness, and the balancing of competing policy considerations, as the law seeks to impose terms that are just and equitable in the circumstances, often in the interest of public policy or to ensure that contracts are executed in a manner that is considered fair and reasonable by societal standards (D).

Question 5

Which of these are terms that may be implied into contracts for the sale of goods? Please select all that apply.&#10;A) The seller of goods has a right to sell those goods.&#10;B) The goods will be of satisfactory quality.&#10;C) The goods will be fit for purpose.&#10;D) The goods sold by sample will correspond with the sample in quality.

Accepted Answer

All these terms are commonly implied into contracts for the sale of goods under laws such as the Sale of Goods Act 1979 in the UK. They ensure that the seller has the right to sell the goods, the goods are of satisfactory quality, fit for purpose, and correspond with any sample provided.

Question 6

Why does the common law tend to imply terms at law only to narrowly defined types of contract?&#10;A) The courts are barred by statute from implying terms into contracts of a very general nature.&#10;B) Courts may feel cautious about whether it is legitimate for them-as opposed to Parliament -to imply terms into contracts of a very general type.&#10;C) The court can only imply terms at law where a statute tells it to.&#10;D) None of the options given is correct.

Accepted Answer

Courts may be cautious about implying terms into contracts of a very general type because they might see it as overstepping their role, which they may view as interpreting rather than making law, a function they might see as more properly belonging to Parliament.

Question 7

The court can find that A both promises (i) to do the contracted for work as a specification requires, and (ii) to perform her side of the contract such that the work done is reasonably fit for its purpose - even where the two appear to be contradictory.

Accepted Answer

Courts can interpret contracts to require both compliance with specific technical specifications and that the work, when completed, must be fit for its intended purpose, even if these requirements seem contradictory. This ensures that the work not only meets the detailed specifications but also serves its intended function effectively.

Deck 12: Implication