It Wasn't in the Contract

A common problem in contract disputes is that matters that create disagreement are sometimes not referred to specifically in the contract. However, as well as the express terms of a contract, there are also terms that are implied that is, they apply without being specifically stated.

The main implied terms of contracts are those imposed by statute. For example, the Supply of Goods and Services Act 1982  and the Sale & Supply of Goods to Consumers Regulations 2002 imply several terms into contracts for sale. For example, it is an implied term that goods sold 'are of a satisfactory quality'. Similarly, there are a number of provisions in the Unfair Contract Terms Act which will mean that unfair terms in a contract can be avoided.

The courts are generally disinclined to meddle in contracts, but may deem a contract to include a term if it is necessary for the performance of the contract and may likewise strike out any clause which is unreasonable.

Recent cases have confirmed that the courts will not act to introduce 'commonsense' clauses to contracts which are agreed, simply to reflect normal business practice, nor will the court accept that terms defined in a contract which were expressed in different terms in the negotiations leading up to the contract should be replaced by the pre-contractual terms as agreed: proof, were it necessary, that care should be taken at each step and you should never sign anything which hasn't been read carefully.