The Sanctity of Contracts in English Law - College of Social ...

Implied Terms 43fact, the meaning of the contract must be taken to be,not what the parties did intend (for they had neitherthought nor intention regarding it), but that whichthe parties, as fair and reasonable men, would presumablyhave agreed upon if, having such possibilityin view, they had made express provision as to theirseveral rights and liabilities in the event of itsoccurrence."A long catalogue could be compiled of cases inwhich the legislature, as well as the courts, has indifferent circumstances and in many and varioustypes of agreements added to the list of impliedterms. Examples of statutory implied terms arefound in the Bills of Exchange Act, 1882, Sale ofGoods Act, 1893, Merchant Shipping Act, 1894,Marine Insurance Act, 1906, Landlord and Tenant Act,1927, Housing Act, 1936, Hire-Purchase Act, 1938,to name only a few of the better known enactments.And the common law courts continue to add to thelist as new circumstances and facts demand.So long as the courts adhered to the view that theobject of implying a term was to give effect to theparties' intention, they had of necessity to recognisethat they could not imply a term which would contradictor vary the express terms of a contract. Inother words, positively, a term could only be impliedif it was necessary in the business sense to giveefficacy to the contract as intended by the parties andit could confidently be said that the term left to beimplied, though unexpressed, was so clear and