Contracts 1 PASS Week 11

Implied terms to reflect the presumed intentions of parties, are terms implied in

Implied terms regardless of intention of parties, these terms are implied by

Terms implied in fact are for the purpose of giving effect to the presumed intention of the parties

• True

• False

When can implied terms in fact be implied?

• To give contract business efficacy

• Reflect a previous course of dealings

• To reflect custom or usage in industry

• To complete the contract

• When there is a duty to cooperate

What are the conditions which need to be satisfied for business efficacy?

• Reasonable and equitable

• Necessary

• So obvious that it goes without saying

• Capable of clear expression

• Not contradict any express term of the contract

When there is no formal contract, which approach should be taken for business efficacy?

• Whether the implication of that particular term is necessary for the reasonable or effective operation of the contract in the circumstances of the case

• Whether the implication of that general term is necessary for the reasonable or effective operation of the contract in the circumstances of the case

What must to consider when determining whether there has been a previous course of dealings?

• Identify the terms previously used

• Identify the number of previous occasions

• Were the previous occasions consistent?

• Was there a reasonable expectation the same terms would apply to the new contract?

• An objective test is used to determine the intention of the parties

What rules must be applied to determine custom or usage?

• The custom or trade usage is a question of fact

• The custom or trade usage must be so well known that all parties can reasonably be presumed to have imported that terms

• The term cannot be contrary to the express terms

• A party may be bound even with no knowledge of the term

• A party will not be even if they have no knowledge of the term

The court will not imply a term that is necessary to complete the contract

• True

• False

Terms which are implied by law, will be implied even if the parties did not intend them to be implied

• True

• False