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The relevant of Implied terms & Express terms

2 replies [Last post]
Thu, 2007-01-25 17:52
Skan Bu
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Hi,

In a Contract, "the implied terms are those that are generally used in a contract and the expressed terms are those that are especially included in that particular agreement"

Can anyone enlighten me how or in what circumstances or which takes precedence over the other?

Thanks
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Replies

Sun, 2007-01-28 03:54
#1
Skan Bu
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Joined: 29 May 2006
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Hi Richard & Andrew,

Thanks for the explanation.

I wonder:
(1) Main Contractor sent a subcontract a standard enquiry ona "package" say groundwork.

(2) SubContractor gave a quotation, say included a priced BQ, a programme & a covering letters with the sub contractor’s conditions (the letter stated/summarised the total in the quotation with "Sub Contract Sum =£ xxxx).

(3) MC sent a "letter of intent" listing:
(a) The sub contract sum
(b) The pre order meeting minute
(c) The SC quotation & covering letter
(d) The Enquiry documents
(e) The Main Contract
(f) The MC programme

(4) Works started & no subcontract had been signed.

(5) A dispute arise.
Q1 Can the SC quotations with their programme and covering letter an "Expressed terms"?

Q2 If the MC wants to re-mesure the works to determine payment but the SC claimed that the Sub Contract Sum is sum to be paid, could this be a "Expressed terms" too?




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Sat, 2007-01-27 12:18
#2
Andrew Flowerdew
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Skan,

Richard is somewhere close.

Express terms are those written in the contract, implied terms are those that the law decides will be in a contract even if they are not written in.

Generally express terms will overide implied terms in commercial dealings except where the law says they won’t. For example, you can’t contract out of adjudication in construction contracts.

In commercial transactions it is fairly uncommon that the law will overide the express terms although in consumer transactions it is very common. The law will imply terms that can not be contracted out of whatever the contract says.

In commercial transactions implied terms usually kick in when the contract is silent or unclear An exmple would be when no completion date or time period for completion had been stated in the contract. Then the law would imply that the contract had to be completed in a reasonable time - what a reasonable time is depends on the circumstances and if the Employer / Contractor could not agree an Arbitrator of Judge would finally decide the issue. An Adjudicator would also give a decision but it’s not finally binding on the parties although they may decide to accept it.

Similarly a reasonable price and a reasonable standard of work would be implied if either couldn’t be clearly determined from the wording of the contract. The above 3 come from the Supply of Goods & Services Act 1982. Other implied terms will come mostly from other Statutes and some from the common law.
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