Implied Terms

Question 1

1. Def

Answer 1

Implied terms are not agreed and written into the contract by the parties but will be implied by the
courts or Parliament

Question 2

Local customs

Answer 2

Terms can be implied through local customs, for example in relation to farming and agriculture (Hutton
v Warren)

Question 3

3. Previous

Answer 3

They can also be implied through prior dealings if parties have contracted frequently and regularly
enough (Hillas v Acros). The courts will then imply terms which were part of previous contracts

Question 4

4. B efficacy test

Answer 4

The courts can also imply terms through the business efficacy test if the term is necessary for the
contract to be effective and the parties would agree this would be obvious if it was suggested to them
(Schawel v Reade - where the courts implied a term that the stud would be fit for purpose)

Question 5

5. Officious bystander test

Answer 5

The courts can also imply a term through the officious bystander test which will be satisifed if while
the parties were bargaining an officious bystander would ask if the parties were going to include the
term and they would say ‘of course’ as it was obvious

However, in M&S the test was clarified. The Supreme Court found reasonableness is to be judged
objectively, the Court stated that when considering what the parties would have agreed, “one is not
strictly concerned with the hypothetical answer of the actual parties, but with that of notional
reasonable people in the position of the parties at the time at which they were contracting”

Question 6

6. CRA 2015 S9

Answer 6

Parliament can incorporate rights within the Consumer Rights Act 2015 if needed, s9 states goods
must be satisfactory quality which is based on what the reasonable man would consider satisfactory
based on price, material and other factors

Question 7

7. S10 CRA

Answer 7

S10 states goods must be fit for purpose which will depend if the consumer expressly or impliedly
refers to a particular purpose they’re buying the goods for before the contract is made, it is an implied term that they will be fit for that purpose (even if they aren’t usually used in that way)

Question 8

8. S11

Answer 8

Finally, s11states products must be as described. The description can include written descriptions on labels, websites, or verbal descriptions from sales assistants. Goods supplied must match the model