Assignment on Contract Law (pdf)

Running head: CONTRACT LAW
Express & Implied Terms
Name of the Student
Name of the University
Author Note

1CONTRACT LAW
Introduction:
The present matter of the case is based on contractual terms. According to general
provision of contract, any terms that form the part of the contract is known as contractual terms.
When a contract has been made in between the parties, both parties are obliged to follow the
terms of the contract and in case of any breach, the affected party can claim damage from the
wrongdoer or repudiate the validity of the contract. However, in a contract, there are two terms
mentioned such as implied terms and express terms.
Discussion:
Implied terms are such terms that are not mentioned by either parties and not mentioned
under the main body of the contract. The implied contracts are of two types such as terms
implied by statutes and terms implied by courts. On the other hand, express terms are those
terms mentioned by the parties and mentioned in the original body of the contract. According to
the basic principle of law, the parties to a contract should have to follow all the express terms of
the contract and in case of any violation regarding the same, the parties could have to face
damage regarding the same. The terms that are mentioned in the contractual agreement could not
be regarded as the implied terms of the contract, the express terms of the contract can be of
condition or warranty of a contract, and violation regarding the same could be penalized in
different forms. According to the case of Esso Petroleum v Mardon [1976] QB 801, it can be
stated that the parties to a contract have to follow the rules during the course of negotiation and
the rules can be classified as express terms, representation and part of the collateral contracts. In
this case, it has been established that if any party to the contract does not follow the terms that

2CONTRACT LAW
are mentioned expressly can bring an action against the wrongdoer. Further, the parties to the
contract can make the claim if any of them make misrepresentation.
On the other hand, the implied terms are regarded as a part of the common law. The
principle has been established in the case of Shell UK v Lostock Garage Limited [1976] 1 WLR
1187. According to the principle of the case, the parties to the contract has to decide whether any
terms include under the contractual agreement and if any terms of the contract are allowed by the
statute or court, both the parties are obliged to follow the rules therefore. Further, it has been
observed that those terms are not required to mention explicitly in the contract. there are three
kinds of implied contracts present under the contract law. They are as follows:
 Implied terms through custom;
 Implied terms through facts
 Implied terms in law
It has been mentioned under the case of Hutton v Warren [1836] EWHC Exch J61 that
where in a trade certain terms are prevalent; the court may consider those terms as implied in that
agreement or contract. Such terms are known as the implied terms through customs. Further, it
has been mentioned in The Moorcock (1889) 14 PD 64 that if any of the parties to the contract
has any intention to maintain the efficacy in the business, the court can include any of the terms
in the contract. Further, Liverpool City Council v Irwin [1977] AC 239 is a historical case where
the court is empowered to include any terms that are forming the legal terms such as landlord-
tenant or retailer-customer. However, it has been mentioned in Shell UK v Lostock Garage
Limited [1976] 1 WLR 1187 that the terms should be certain and there shall not be ambiguity.

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Conclusion:
The common differences in between the express and implied terms are that the former is
mentioned in the agreement and the latter has not been mentioned under the contract agreement.
However, the parties to the contract have to follow all the express terms that are agreed in
between them. in case of implied terms, it has been observed that courts are decided whether to
maintain the terms or not.

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Reference:
Esso Petroleum v Mardon [1976] QB 801
Hutton v Warren [1836] EWHC Exch J61
Liverpool City Council v Irwin [1977] AC 239
Moorcock (1889) 14 PD 64
Shell UK v Lostock Garage Limited [1976] 1 WLR 1187