Implication Of Terms Research Articles

Good Faith in English Contract Law: Should the Law Retreat?

English courts have traditionally adopted a highly restrictive approach when implying good faith terms in commercial contracts. However, a series of recent judgments has seemed to depart from this tradition. In this paper, first, I reinforce and expand upon arguments that doctrinal support for the implication of such terms is lacking. Second, I clarify why the semantic behaviour of ‘good faith’, contrary to what is typically claimed, does not amount to innocent context-sensitivity. I present a new account of what is distinctively objectionable about implying good-faith terms and also demonstrate its explanatory power. These results also inform the moral architecture of English contract law, suggesting that it should be more minimalist than it might have been thought. Good faith, Contract law, implication of terms, context-sensitivity, legal certainty.

Mercantile Usage, Construction of Contracts and the Implication of Terms, 1750–1850

Mercantile Usage, Construction of Contracts and the Implication of Terms, 1750–1850

Demystifying Implied Terms

Recent years have witnessed significant interest in demystifying the implication of contract terms. Whilst the discussion thus far has elicited some answers, the subject remains notoriously ‘elusive'. This article advances discussion in the field. It argues that underlying recent debates are deeper issues that must be brought to the surface. These include theoretical incoherence regarding the nature/purpose of implication tracing back to The Moorcock (1889), and analytical indeterminacy in applying the established ‘tests' for implication, as courts vary between conflicting instrumental and non-instrumental approaches. Feeding both issues is inconsistent linguistic use of core terminology. This article helps demystify implication by distilling two ‘theses’ well-supported by the authorities, and elaborating their details and significance. Whilst the divided state of the authorities precludes instant resolution, the article further contributes a reflection on possible ways forward, including a new possibility raised here that implication may comprise two distinct exercises matching the theses described.

Breach of contract

This contribution uses J & H Ritchie Ltd v Lloyd Ltd 2007 SC (HL) 89 as a peg on which to hang a number of fundamental questions about contract: What is a contract? Does the word ‘contract’ sometimes refer to a legal relationship rather than a juridical act? If so, does this matter? Is the law on implied terms satisfactory? Might a duty of good faith and fair dealing in contract law be a better way of dealing with certain problems than resort to the implication of terms? When is a breach of contract serious enough to justify cancellation or rescission? Should a supplier of defective goods have a right to cure the defect? Is there a risk of forgetting the difference between a right to withhold performance and a right to rescind or cancel? These questions are prompted by the fact that this was a straightforward case and similar situations must occur regularly. Yet, different judges reasoned differently and came to different conclusions in the course of the case being appealed all the way to the House of Lords. The question, therefore, is: how might a simple case have been better, or in a more straightforward way, approached through law? The contribution argues that the Draft Common Frame of Reference (the DCFR) provides both concepts and rules that would have reached the ultimate conclusion in Ritchie much more quickly and perhaps the case would not have needed to be litigated at all.

The construction of patent claims

AbstractThis paper highlights two recurring facets of the way UK courts approach the construction of patent claims: the adoption of methods typically applied to the interpretation of contracts and the recognition that immaterial variations not expressly claimed nevertheless fall within the scope of protection. Drawing on the normative implications arising out of Ronald Coase's paper on the problem of social cost, this paper argues that the patent system operates as a substitute for an explicit bargain between economically active entities operating in the market under which a duty is accepted by one party in return for acceptance of a burden of risk by the other. This perspective incorporates both the static costs and the dynamic benefits of the system and accords with the monopoly-profit-incentive theory most commonly advanced in support of the patent system. It is shown how the contemporary approach to claims construction is supported by the object of giving effect to the presumed intentions of the parties to this hypothetical bargain and that this underpins both the implication of terms which go beyond those expressly agreed to by parties to a contract and the construction of patent claims so as to embrace immaterial variations not expressly within their scope.

The origins of terms implied by law into English and Australian employment contracts

ABSTRACT One of the most significant ways that the common law regulates employment contracts is through the implication of terms by law to fill gaps. This article traces the origins and current status of a selection of key terms implied by law into both English and Australian employment contracts. The majority of those terms have been derived from a combination of equity, tort, and the former master and servant regime. At their inception in English employment law, most were recognised as ‘norms’ in the master and servant regime. Only after the employment relationship was recognised as contractual did these norms become accepted as ‘terms implied by law’, both in England and Australia, yet they lacked proper justification as to why. This re-characterisation is problematic: it avoids adequate consideration of whether such terms are truly necessary in all modern employment situations.

The real of fake news.

Fake news generated nowadays broad debates. The spread of fake news intertwines with the phenomenon of populism and the crisis of democracy. Indeed, the cornerstone of democracy, the freedom of public opinion, is the assumption that authenticity of facts is not altered. The separation of opinions from facts as the basis of democratic participation in political scene is the emblematic position of Hannah Arendt. But If it is acceptable that fake news must be countered by correct realism, we must be aware of the mutual implication of both terms at stake: subjects and reality. What is the real of fake news?

Belize It or Not: Implied Contract Terms in Marks and Spencer v BNP Paribas

In Marks and Spencer v BNP Paribas, the Supreme Court restated the law on the implication of terms in fact, rejecting the previously authoritative approach taken by Lord Hoffmann in Attorney General of Belize v Belize Telecom Ltd. This article examines two major departures from Belize in Lord Neuberger's leading judgment: the treatment of implication as a process separate from interpretation, and a return to the ‘traditional tests’ for the implication of terms. It argues that these are retrogressive steps in our understanding of contract terms, which risk fostering an incoherent and unprincipled approach to the law.

The Limits of Interpretation in the Law of Contract

In the law of contract questions of risk allocation properly turn, where possible, on interpretation of the agreement. This article will explore the limits of that approach. It will do so by considering two doctrines that lie at the boundaries of contract interpretation: the implication of terms in fact and the remoteness principle. Both doctrines have been commonly understood as gap-filling rules, but in two influential judgments Lord Hoffmann sought to recast them as interpretative principles. It will be argued in this article that the implication of terms in fact can properly be regarded as an interpretative exercise, but the same cannot be said of the application of the remoteness doctrine. The implication of terms in fact can helpfully be understood as interpretative, provided care is taken to explain the paths of reasoning leading to the conclusion that a contractual instrument must be understood to include a particular unexpressed term. Because no common paths of interpretative reasoning can be identified for the determination of remoteness questions, it is unsettling and counterproductive to attempt to take an interpretative approach to these questions.

SILENCE IS GOLDEN: IMPLIED TERMS IN THE SUPREME COURT

LIKE the interpretation of the express words in a contract, the implication of terms in fact is traditionally explained as a way of the court giving effect to what the parties intended, judged objectively. So the two processes have something in common at a high level of generality. Much more controversial is the suggestion, made by Lord Hoffmann giving the opinion of the Privy Council in Attorney General of Belize v Belize Telecom Ltd. [2009] 1 W.L.R. 1988, that the process of implying terms is merely an aspect of interpretation: “There is only one question: is that what the instrument, read as a whole against the relevant background, would reasonably be understood to mean?” This analysis, which generated intense academic debate, had not been considered by the Supreme Court until the recent decision in Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd. [2015] UKSC 72.

Implied terms again, or how Lord Hoffmann got treated in Marks & Spencer

This comment summarizes and reflects on the decision of the United Kingdom Supreme Court in Marks and Spencer v BNP Paribas Securities Services Trust Company (Jersey) Ltd. It presents the leading judgment as an attempt to obstruct the development of a welcome new understanding of implication of contract terms as an exercise in contractual construction. This attempt is unconvincing, requiring an unduly timid reading of Lord Hoffmann’s influential judgment in Attorney General of Belize v Belize Telecom Ltd.

Abdominal Wall Prosthetic Repair in Ventral and Incisional Hernia Treatment: Classification, Terminology and Technical Aspects (Review)

DOI: 10.17691/stm2015.7.2.19 Received August 26, 2014V.V. Parshikov, MD, DSc, Professor, Department of Hospital Surgery named after B.А. Korolev;А.А. Fedaev, PhD, Associate Professor, Department of Hospital Surgery named after B.А. KorolevNizhny Novgorod State Medical Academy, 10/1 Minin and Pozharsky Square, Nizhny Novgorod, 603005, Russian federationThe review considers in detail the most important aspects of open abdominal wall prosthetic repair techniques applied in surgical treatment of ventral and incisional hernias according to contemporary foreign and domestic experience. we have presented the views of leading researchers on the use of synthetic endoprostheses. The authors have suggested a modern classification of primary ventral and incisional hernias indicating its variation from the previous classification SwR (Chevrel and Rath) and others. we have assessed and interpreted the English terms compared to those used in Russia. The review has traced the change of the term “tension-free plasty” in its historical perspective.The work has presented the main up-to-date techniques for mesh endoprostheses implantation, their advantages and drawbacks. There have been estimated the key points of prosthetic repair surgeries in median abdominal wall closure. we have considered correct names of variants of surgeries depending on mesh placement in relation to hernia orifices, anatomical layers of abdominal wall, and self-tissue displacement.we have clarified some peculiarities of operative techniques relying on intra-abdominal pressure control, and estimated the advantages and disadvantages of these techniques.The review has specified the most urgent problems of modern herniology, and presented one of promising directions of surgical technique improvement in the treatment of patients with large ventral and incisional hernias. we have shown the necessity of proper usage and understanding of the implication of terms standing for operative interventions, as well as correct use of corresponding classifications and terminology for adequate comparison of our research results with those of our colleges.Key words: incisional hernias; ventral hernias; prosthetic repair; tension-free plasty; abdominal wall reconstruction; mesh; intra-abdominal pressure.For contacts: Parshikov Vladimir Vyacheslavovich, e-mail: pv1610@mail.ruV.V. Parshikov, А.А. fedaev

On the Spectral Stability of Kinks in Some ‐Symmetric Variants of the Classical Klein–Gordon Field Theories

In the present work we consider the introduction of ‐symmetric terms in the context of classical Klein–Gordon field theories. We explore the implication of such terms on the spectral stability of coherent structures, namely kinks. We find that the conclusion critically depends on the location of the kink center relative to the center of the ‐symmetric term. The main result is that if these two points coincide, the kink's spectrum remains on the imaginary axis and the wave is spectrally stable. If the kink is centered on the “lossy side” of the medium, then it becomes stabilized. On the other hand, if it becomes centered on the “gain side” of the medium, then it is destabilized. The consequences of these two possibilities on the linearization (point and essential) spectrum are discussed in some detail.

IMPLIED TERMS AFTERBELIZE TELECOM

AbstractIt is five years since Lord Hoffmann delivered the advice of the Privy Council inAttorney-General of Belize v Belize Telecom Ltd. In that landmark decision, Lord Hoffmann assimilated contractual interpretation and implication with the result that when implying a term in fact the court must ask a single question: “is that what the instrument, read as a whole against the relevant background, would reasonably be understood to mean?” It might have been thought that five years was enough time for the English courts to come to terms with this approach.Belizeis regularly cited in the courts, but the judges appear to struggle with its application. There remains uncertainty as to the roles (if any) to be afforded to the traditional “business efficacy” and “officious bystander” tests, and the requirement of “necessity”. This article seeks to re-evaluateBelizefive years on. It concludes thatBelizeprovides a doctrinally coherent and workable basis for identifying and giving effect to the intention of the parties through the implication of terms. However, the article questions whether it remains necessary, or even helpful, to continue to make reference to tests based on “business efficacy” or the “officious bystander”, as the tests distract from the central idea advanced by Lord Hoffmann and have led to uncertainty in its application.

Gene-set based genome-wide association analysis for the speed of sound in two skeletal sites of Korean women

The speed of sound (SOS) value is an indicator of bone mineral density (BMD). Previous genome-wide association (GWA) studies have identified a number of genes, whose variations may affect BMD levels. However, their biological implications have been elusive. We re-analyzed the GWA study dataset for the SOS values in skeletal sites of 4,659 Korean women, using a gene-set analysis software, GSA-SNP. We identified 10 common representative GO terms, and 17 candidate genes between these two traits (PGS ＜ 0.05). Implication of these GO terms and genes in the bone mechanism is well supported by the literature survey. Interestingly, the significance levels of some member genes were inversely related, in several gene-sets that were shared between two skeletal sites. This implies that biological process, rather than SNP or gene, is the substantial unit of genetic association for SOS in bone. In conclusion, our findings may provide new insights into the biological mechanisms for BMD. [BMB Reports 2014; 47(6): 348-353]

Good Faith in Contract: Why Australian Law is Incoherent

This paper assesses the present state of good faith as a concept used in the resolution of contractual disputes under Australian law. Its thesis is that the current law is incoherent due to the wide variety of views expressed in the cases and the failure to integrate good faith within principles governing the interpretation of contracts and the implication of terms. The specific contexts to which the thesis is applied are the performance and termination of contracts.

Implied Terms: The Foundation in Good Faith and Fair Dealing

With the aim of clarifying English law of implied terms in contracts and explaining their basis in the idea of good faith in performance, it is argued first that two, but no more, types of implied terms can be distinguished (terms implied in fact and terms implied by law), though it is explained why these types are frequently confused. Second, the technique of implication of terms is distinguished in most instances from the task of interpretation of contracts. Third, it is argued that ideas of good faith and fair dealing should be acknowledged as central to the implication of terms, though different notions of good faith apply to terms implied in fact and terms implied by law. Finally, it is possible to identify a group of contracts (networks) that share an intensified economic logic of both competition and co-operation arising from their structure as a quasi-integrated production regime which require intensified duties of loyalty and co-operation implied by law.

A New Framework for the Implication of Terms in Fact

A New Framework for the Implication of Terms in Fact

LIBOR reform and contractual continuity – issues for the financial markets

LIBOR is used as a benchmark in a vast number of contracts globally. Market participants are questioning what will happen to their contracts if the way in which LIBOR is calculated is changed. Although the outcome will depend on the precise terms of the contract, the circumstances in which it was entered into and what happens to LIBOR, the English courts will be well aware of the wider importance to the financial markets of any decision they make and should strive to ensure as little disruption to the financial markets as possible. The courts have a number of tools at their disposal to achieve continuity (notably contractual interpretation and implication of terms) and will also rely to the extent possible, on any contractual interest rate fall-back provisions.

Towards a General Notion of Good Faith in English Contract Law

English law has time and again denounced the existence of an overriding principle of good faith in its jurisdiction. Contrary to its civil law counterparts in Europe that embrace the general principle of good faith, it has chosen only to apply good faith in a piecemeal fashion and for specific areas. It asserts that the general principle of good faith is totally repugnant to the fundamentals of its legal system that favors creating incremental and specific solutions to legal issues, that adheres to the legal principle of party autonomy and holds sacred legal certainty. It is adamant that it does not need a general principle of good faith for it has its own homegrown rules to ensure that justice, fairness and reasonableness prevails in its legal system. In the recent years, the unwavering position of English law against good faith is continuously being tested. For one, the duty of good faith has found its way into English law via various European Union harmonisation instruments such as The Commercial Agents (Council Directive) Regulations 1993 implementing Council Directive 86/653/EEC and The Unfair Terms in Consumer Contracts Regulation 1999 implementing Council Directive 93/13/EEC, and with more harmonisation efforts expected in the near future with current talks of a European Sales Code and the presence of Principles of European Contract Law by the Lando Commission. For another, the current economy has already shifted from a domestic concern into a global one. Consequently, contracts at this day and age cease to be a national affair. This means that the good faith principle, which exists in most countries with civil and mixed legal systems making up the majority of not only European countries but the rest of the world, will continuously govern or form part of many contracts touching English law whether it likes it or not.Moreover, the growing acceptance of the principle of good faith in other common law countries has attracted many writings by English law scholars in the recent years and this has also inspired recent English court decisions to give good faith a second look or even impute it in contractual obligations. In fact, Longmore LJ expressed his sentiment to reconsider the House of Lords’ dictum in Walford v. Miles citing Lord Steyn who criticised such narrow approach. Lord Steyn even stated that the principle of good faith is not a world of difference from English law’s doctrine of reasonable expectations of the parties and that duties of good faith, when imposed on the parties, can easily be accommodated by English law. Some authors suggest that English law’s often resort to the implication of terms and other legal doctrines that give more emphasis to party loyalty, the protection of reliance, cooperation, consideration of the other party’s interest, and substantive fairness, signals its movement away from the will theory and thus ready to revive the ethical foundations of contract law existing before the 19th century. With all the foregoing developments on the principle of good faith in English law and its continuous growing influence, it is time to revisit whether English law’s open denunciation of a general principle of good faith remains true today. English law is described to be a dynamic legal system which always transforms to meet the needs of the times and to create conditions conducive for growth and development. Given the current global economy, the need to adapt to the European and global dimension of contract law carrying more complex transactions and relationships which renders the old and simple system of English contract law no longer sufficient to determine the parties’ intricate contractual obligations and their manner of performance, is English law now ready to abandon its headstrong position that it does not accept the general duty of good faith and is in fact heading towards this direction in contract law? The objective of this work is to answer this question by comparing the treatment and the level of acceptance of good faith in prominent European civil law systems, common law systems and of course, in English law. It will take into account recent developments in English law and with these, benchmark the current level of acceptance of good faith by English law and determine whether it is going towards a general principle or not.