ii. TERMS IMPLIED IN FACT A term will be implied in fact where it is based on the ‘presumed’ intentions of parties, rather than their actual intentions. 1) Formal contracts BP Refinery Pty Ltd v Hastings Shire Council – For a term to be implied in fact, the following conditions must be satisfied: o Must be reasonable and equitable o It must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it o It must be so obvious that it ‘goes without saying’ o It must be capable of clear expression o It must not contradict any express terms in the contract Codelfa Construction Pty Ltd v State Rail Authority of NSW – An implied term is “one which it is presumed that the parties would have agreed upon had they turned their minds to it; it is not a term that they actually agreed upon.” – The more detailed and comprehensive the contract the less ground there is for supposing that the parties have failed to address their minds to the question at issue. – This is because of the difficulty of identifying with any degree of certainty the term which the parties would have settled upon had they considered the question.
The most concise and updated Contract Law Study Notes for Australian Law Students.
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Approximately 20442 words over 39 pages. Prepared in 2019.