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

44 Curtailment of Freedom by the Courtsobvious that it went without saying. 6 And, negatively,no term could be implied if it would conflict or beinconsistent with the intention of the parties asexpressed in their agreement. 7The doctrine of implied terms has not been uniformlypopular; yet in recent times the circumstances in whichterms will be judicially implied seem to have been extendedand the justification for their imputation in thosecircumstances has been stated somewhat differently.In a recent note in the Law Quarterly Review 8 itis observed that: " It is obvious that no contractcan ever be drawn in so complete a form that itmay not become necessary, if unforeseen circumstancesarise, for the court to imply terms which were nevercontemplated by the parties when the contract wasmade." Denning L.J. went a good deal further inhis famous judgment in the Movietonews case 9 whenhe declared that " the day is gone when we can excusean unforeseen injustice by saying to the sufferer ' Itis your folly. You ought not to have passed thatform of words. You ought to have put in a clauseto protect yourself.' We no longer credit a partywith the foresight of a prophet or his lawyer withthe draftmanship of a Chalmers."In recent cases a tendency has appeared to makewider use of the doctrine so as to enable the courts6 See per Scrutton L.J. in Reigate v. Union Manufacturing Co.[1918] 1 K.B. 592, 605; and per MacKinnon L.J. in Shirlawv. Southern Foundries, Ltd. [1939] 2 K.B. 206.7 See per Lord Parker in Tamplin SS. Co. v. Anglo-MexicanPetroleum Products Co., Ltd. [1916] 2 A.C. 397, 423.8 Vol. 71, p. 457.9 British Movietonews v. London & District Cinemas, Ltd.[1951] 1 K.B. 190, 202.