The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:
Contractual terms may be either express or implied:
express terms—are terms which are actually recorded in a written contract or openly expressed in an oral contract at the time the contract is made (or there may be a combination of written and oral express terms)
implied terms—are not stated in the contract but arise 'by implication' to reflect the intention of the parties at the time the contract was made. Terms may be implied by fact, law or custom
For guidance on implying terms into contracts, see Practice Notes:
Contract interpretation—terms implied by fact
Contract interpretation—terms implied by law
Contract interpretation—terms implied by custom and usage
Where terms are expressly agreed, issues can arise as to:
incorporation—what has been incorporated as an express term of the agreement, and
construction or interpretation—what the incorporated terms mean
Where statements are made in the course of negotiations, but not effectively incorporated as express terms of the agreement, consideration should also be given as to whether such statements are misrepresentations (see Practice Note: Pre-contractual representations and statements) or collateral contracts (see Practice Note: Contract interpretation—when is a statement a representation or a contractual term?—If not a contractual term is the representation enforceable as a collateral contract?).
Where the terms of a written contract are set out
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