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GLOSSARY

Implied term definition

Published by a LexisNexis Construction expert

What does Implied term mean?

A term which is imported into a contract, in addition to those expressly agreed by the parties. There are three broad categories of implied terms—those implied by statute, by common law and by fact.

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Drafting and negotiating an entire agreement clause—checklist

Drafting and negotiating an entire agreement clause—checklist This Checklist sets out key issues to consider, and provides practical guidance, when drafting and negotiating entire agreement clauses in a business-to-business (B2B) contract. It considers the implications of common law and statutory controls, including the Unfair Contract Terms Act 1977 (UCTA 1977) and the Misrepresentation Act 1967 (MA 1967). The purpose of an entire agreement clause is to give the parties certainty that the entirety of the agreement between them is set out in writing and to ensure that any pre-contractual representations, statements, arrangements or discussions will not form part of the agreement they are entering into. Statements are often made by one party to another as part of the pre-contract negotiations (for example as part of a sales process). Disputes can arise around whether, or which, statements are intended to form part of the contract or potentially give rise to other remedies. Depending on the facts, a pre-contractual statement might take legal effect (and give rise to remedies). For more information, see Practice Note: Pre-contractual representations and statements....

Misconduct investigation and disciplinary hearing—flowchart

Misconduct investigation and disciplinary hearing—flowchart This Flowchart sets out the stages of a disciplinary procedure to deal with an issue of employee misconduct, from investigating the allegation(s), to conducting a disciplinary hearing and deciding on appropriate disciplinary action, and managing an appeal process. Click below to view or print the full-size PDF version: Note 1—dealing with an allegation of misconduct When considering whether the issue is one involving potential misconduct, it may be necessary also to review the employee’s contract, the employer’s staff handbook and any other policies or procedures that may be relevant in addition to the disciplinary/dismissal procedure, eg equality/equal opportunities policy or expenses policy. It is also worth remembering that a situation that might, at first glance, appear to be a case of misconduct, could turn out to be a performance or capability problem. See Practice Note: Managing conduct—Dealing with conduct issues. Where a conduct issue arises, the first stage in managing that issue is to investigate the problem, promptly and without unreasonable delay, to...

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Fitness for purpose in construction contracts

Fitness for purpose in construction contracts A contractor or consultants’ standard of care in relation to design is a common source of disagreement between the parties to a construction project. In most cases the contractor or consultant will be trying to avoid accepting a 'fitness for purpose' obligation in relation to the design—either express or implied. This Practice Note examines what the so-called 'fitness for purpose' obligation is, who is subject to it and who isn't, where it comes from and why contractors and consultants are keen to avoid accepting it. It also includes example clauses and considers whether a contractor should accept them. The amount of design that a contractor or consultant may carry out under their contract or appointment will vary but, regardless of the extent of design undertaken, the principles dictating the standard of care in respect of that design will be the same. Where does the fitness for purpose obligation come from? The fitness for purpose obligation derives from legislation regarding product liability and...

Ireland—Trade secrets and confidential information

Ireland—Trade secrets and confidential information This Practice Note sets out the protection available for trade secrets and confidential information in a commercial and employment context in Ireland. It outlines the common law and the law under SI No 188/2018 European Union (Protection of Trade Secrets) Regulations 2018 (Ireland) (the Trade Secrets Regulations (IRL)). Topics to be covered in this Practice Note include: • defining ‘trade secrets’ and ‘confidential information’ • protecting trade secrets and confidential information in the commercial and employment context • the concepts of fidelity and confidentiality • distinguishing between general knowledge and trade secrets • secondary liability • injunctions • other relief: damages, account of profits • European influence: Directive (EU) 2016/943 and SI No 188/2018 European Union (Protection of Trade Secrets) Regulations 2018 (Ireland) (the Trade Secrets Regulations (IRL)) Introduction to the laws protecting confidential information and trade secrets in Ireland Historically, Ireland had no statutory regime to address the protection of trade secrets and other confidential information. Their protection derived solely from equitable common law...

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Time recording FAQs

Time recording FAQs FAQs These FAQs supplement our Time recording policy, which can be found [state where, eg on our intranet]. What is [matter-related OR chargeable] time? All time that you spend on a client’s matter should be recorded as [matter-related OR chargeable] time, regardless of whether it can be billed. Non-[matter-related OR chargeable] time is all other time you spend on the firm’s business. [Matter-related OR Chargeable] time Non-[matter-related OR chargeable] time Preparation time Printing Standard telephone calls (up to 6 minutes) Business development activities Telephone call over 6 minutes (record as ‘telephone attendance’) Unjamming the printer Writing a standard letter or email (up to 6 minutes) Reading legal updates Writing a letter or email that takes more than 6 minutes (record as preparation time) Attending training Reading incoming correspondence and emails (ensure you provide narrative to justify the time spent and any action plan formulated as a result of the correspondence) Travel to and from work Travel Team meetings (not relating to a client...

Particulars of claim for enforcement of adjudication decision

Particulars of claim for enforcement of adjudication decision Note: • this Practice Note gives specific guidance on matters proceeding in the Technology and Construction Court (TCC) under the provisions set out in CPR 60, CPR PD 60 and the TCC Guide. As these provisions are additional to the general provisions set out elsewhere in the CPR, this Practice Note should be read in conjunction with general guidance on preparing for and attending trial including that in Trial—overview which, in turn, links through to detailed guidance on specific aspects of preparing for and attending trials • shorter and flexible trials schemes—claims started on or after 1 October 2015 in the TCC may be suitable for and/or be subject to one or both of the schemes operating under CPR PD 57AB, namely the shorter trials scheme and/or the flexible trials scheme. For more information on these schemes, see Practice Notes: Business and Property Courts—shorter trials scheme and Business and Property Courts—flexible trials scheme • electronic working—for information on electronic working...

Dive into our 19 Precedents related to Implied term

The adjudicator has resigned from acting in an adjudication because the responding party raised a jurisdictional challenge and the adjudicator found it was valid. Can the adjudicator now claim fees for the work that they did before resigning? If so, which party is liable to pay them?

The adjudicator has resigned from acting in an adjudication because the responding party raised a jurisdictional challenge and the adjudicator found it was valid. Can the adjudicator now claim fees for the work that they did before resigning? If so, which party is liable to pay them? Disputes regarding liability for an adjudicator’s fees and expenses can raise complex questions, and relatively few cases consider this subject in detail. However, at the outset, parties to adjudication should remember that there are two aspects of their liability for adjudicator’s fees: (i) their liability to the adjudicator; and (ii) their liability to each other. In most cases, where the adjudication runs its ‘normal’ course and the adjudicator issues an enforceable decision: • the parties’ liability to each other will be determined by the adjudicator as part of its decision. The adjudicator usually has the power to allocate its fees between the parties as it considers appropriate. Typically, the adjudicator will order that the unsuccessful party in...

An individual is employed on a one-year fixed-term employment contract as maternity cover. Following a cancer diagnosis part-way through the fixed-term, their contract is extended for seven months to allow the employee to benefit from enhanced sick pay. At the date of termination, the employee would still have the benefit of a few months of half-pay under the terms of the enhanced sick pay scheme before their sick pay reduces to nil. The other employee has returned from maternity leave. Is there a risk of disability discrimination claims?

An individual is employed on a one-year fixed-term employment contract as maternity cover. Following a cancer diagnosis part-way through the fixed-term, their contract is extended for seven months to allow the employee to benefit from enhanced sick pay. At the date of termination, the employee would still have the benefit of a few months of half-pay under the terms of the enhanced sick pay scheme before their sick pay reduces to nil. The other employee has returned from maternity leave. Is there a risk of disability discrimination claims? Disability discrimination Under section 6 of the Equality Act 2010 (EqA 2010) and EqA 2010, Sch 1, Pt 1, cancer is considered (without more) to be a disability for the purposes of EqA 2010. See Practice Note: Disability. Consideration will need to be given to the different types of discrimination and other prohibited conduct set out in EqA 2010. See the section of Practice Note: Disability discrimination entitled ‘The basic types of discrimination and other prohibited conduct’, and the more detailed Practice...

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Can texts exchanged over WhatsApp create a binding contract?

Ireland—Dispute Resolution analysis: This article, was written by Cahal Carvill and Darren Fitzsimons of Arthur Cox LLP. A review of the High Court’s decision in Jaevee Homes Limited v Fincham.

Employment weekly highlights—1 May 2025

This edition of Employment weekly highlights includes: (1) a new Employment Rights Bill factsheet on changes to the statutory sick pay structure, (2) the EHRC interim update on the practical implications of For Women Scotland v The Scottish Ministers Supreme Court decision, and confirmation that an updated EHRC Code of Practice is expected in summer, (3) analysis by Annie Davis of Old Square Chambers of Court of Appeal guidance on Article 14 ECHR challenges to employment legislation, (4) examination by the EAT of the benchmark for costs orders in discrimination claims, (5) an EAT judgment addressing the question of relevance when determining applications for information and disclosure of documents, (6) an EAT decision that acquiescence over businesses getting struck-off can be unreasonable conduct for the purposes of a costs order, (7) our new Practice Note on employers’ obligations to manage workplace temperature, (8) dates for your diary, and (9) other news items of interest to employment practitioners.

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