Published In
King's Law Journal
Document Type
Article
Publication Date
8-10-2022
Subjects
implied terms, contract law, interpretation, Marks and Spencer, Belize Telecom, contracts, UKSC, foundations of law, common law, good faith
Abstract
Recent years have witnessed significant interest in demystifying the implication of contract terms. Whilst the discussion thus far has elicited some answers, the subject remains notoriously ‘elusive'. This article advances discussion in the field. It argues that underlying recent debates are deeper issues that must be brought to the surface. These include theoretical incoherence regarding the nature/purpose of implication tracing back to The Moorcock (1889), and analytical indeterminacy in applying the established ‘tests' for implication, as courts vary between conflicting instrumental and non-instrumental approaches. Feeding both issues is inconsistent linguistic use of core terminology. This article helps demystify implication by distilling two ‘theses’ well-supported by the authorities, and elaborating their details and significance. Whilst the divided state of the authorities precludes instant resolution, the article further contributes a reflection on possible ways forward, including a new possibility raised here that implication may comprise two distinct exercises matching the theses described.
Citation Details
Marcus Moore, "Demystifying Implied Terms" (2022) 33:3 King's Law Journal 455.
Comments
The Version of Record of this manuscript has been published and is available in (2022) 33:3 King's LJ 455 - https://doi.org/10.1080/09615768.2022.2108925