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Implied Terms

            
             An implied term is a term that is not expressed by the parties (either in writing or orally) but which the court "reads into" the contract. .
             Given that courts are not supposed to make a contract for the parties, what is the justification for implied terms? The justification depends upon the type of implied term.
             In some cases, the court implies a term on the ground that the parties probably had the term in mind but simply neglected to express. Thus the court is giving effect to the actual intentions of the parties.
             In some cases the court implies a term which the parties probably did not have in mind but would have wanted had they thought of it. Again, the justification for implying the term is that the court is simply giving effect to what the parties would have wanted had they bothered to address the topic in their negotiations.
             However, there are other types of implied terms which have nothing to do with the parties' intentions. A statute (such as the Sale of Goods Act) might provide that certain terms will be implied into all contracts. .
             .
             Implied terms are those which are declared to be part of the contract even though the parties have not consciously included them. The courts will imply a term into a contract if they believe that the addition is necessary to make the contract truly reflect the intentions of the parties. The decision to do so will be based upon an examination of the express terms of the contract and the circumstances surrounding its formation. .
             There are four main circumstances which allow the courts to imply terms into a contract:.
             1. Trade or custom usage.
             2. Past dealings between parties.
             3. Business efficacy.
             4. Terms implied by operation of statute.
             Under the common law, terms may be implied by reference to trade or custom usage, if it is well known that certain practices traditionally apply to all contracts within the particular industry. They may also be implied under the common law by reference to previous dealings between the same parties, or to give business efficacy (commercial common sense) to the contractual arrangements.


Essays Related to Implied Terms

1. Political Satire

Several different derogatory terms are used throughout the writing to refer to the Chinese people, as is continued remarks towards the communist status of the country. When referring to the country and the people of China, it is written that Bush describes China as "the Red Republic of Chineses", and uses terms such as "Chinateezos", "Chinafolk" and "yellow man". The author isn't implying that he has any sort of hatred for these people, but that he feels that Bush is a stereotypical ignorant Texan. ... When referring to the fact that China was just recently able to reach space, approxi...

  • Word Count: 649
  • Approx Pages: 3
  • Grade Level: Undergraduate

2. Australian Consumer Protection Legislation

The Trade and Practices Act 1974(Cth) implies that a corporation has a right to sell the goods (sec 69(I)), When goods are advertised by their kind, that is, sold by description, the goods bought will correspond with the description (sec 70); When goods are sold, those goods are of merchantable quality (sec 71(I)), If a consumer examines the goods before the sale or if the corporation draws any defects to the attention of the consumer, the term will not be implied (sec 71(I)). ... A breach of statutory implied terms gives the consumer a right to seek damages or rescission from common law, depe...

  • Word Count: 1623
  • Approx Pages: 6
  • Grade Level: Graduate

3. The Final Embrace

Her strategy is to use highly emotional terms to depict the painful effects of slavery on Black women. ... This term is used to imply that it is more than one person involved. Harper also uses this term to imply that "they" consist of all the people involved in the institution of slavery. ... With only two terms, Harper has created a scene where a group of people is forcefully disrupting a situation. ... In conclusion, Harper uses a variety of descriptive and emotional terms in the selected sentence to generate the audience's emotions. ...

  • Word Count: 674
  • Approx Pages: 3
  • Has Bibliography
  • Grade Level: High School

4. THE WINDHOVER

Hopkins implies that the hawk is wounded just as Christ was wounded as a man. ... Christ's transfiguration is implied as the poet speaks of the bird's "striding on high" (4). ... The descriptive terms "brute beauty, valor, and act" show that the beauty of the bird in flight cannot compare to the glory of Christ as He is a "billion/ Times told lovelier, more dangerous" (10-11). ... These terms depict the royalty, eternity, and heavenly attributes of Christ. ...

  • Word Count: 475
  • Approx Pages: 2
  • Grade Level: High School

5. The Theory of Natural Selection

Thus, this implies that the population of the given species will face a gradual increase. ... This thus implies that the individual organisms will have to compete for the access of the limited resources in the given ecological location, and organisms that possess the most suited characteristics will access the resources, and those with less fitting characteristics and traits would be eliminated, a term that Darwin named survival of the fittest. ... The consequence of the struggle for organisms to exist gives rise to the issue of sexual selection, which is one of the limited resources for the o...

  • Word Count: 539
  • Approx Pages: 2
  • Grade Level: Undergraduate

6. Three Branches of Government

However, judicial review is not an explicit power given to the courts, but it is an implied power. ... The judicial branch consists of nine justices, including a chief justice, appointed for life terms by the president with the consent of the Senate. ... Implied powers are the powers of the federal government that are implied by the expressed power in the Constitution. ... In terms of the people's will, the legislative branch is expected to be the most responsive. The legislative branch deals with the people, not directly, but in similar terms. ...

  • Word Count: 864
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7. Metaphors

This does not literally imply that ones head is not screwed in correctly, but that their thought process is not right. Another metaphor commonly used is "living Large", this does not imply that someone is very large or they live large, it implies that one is very well off and is living a very glamorous and rich lifestyle. ... For Example, the term "virus", does not imply a biological virus or a microbe like the flue that could cause illness. ... A crashed computer in no way implies that the computer was involved in a collision of some sort. ... Most of the terms we associate with compu...

  • Word Count: 654
  • Approx Pages: 3
  • Grade Level: High School

8. Agency law and the statutor

From the following list select two areas of law and describe the way in which the promote and facilitate business activity: a) Security contracts b) Agency law c) Voluntary administration d) The statutory implied terms in the Sale of Goods Act (NSW) and the Trade Practices Act (Cth) The two areas chosen for discussion for the purposes of this assignment are: B-AGENCY LAW and D- THE STATUTORY IMPIED TERMS IN THE SALE OF GOODS ACT (NSW) AND THE TRADE PRACTICES ACT (CTH). ... Duty to act in person: This implies that unless specified before hand the agent has the ultimate ...

  • Word Count: 4446
  • Approx Pages: 18
  • Grade Level: High School

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