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

46 Curtailment of Freedom by the Courtsinto his father, another employee of the same employers,and injured him.Despite quite a number of cases in which thedoctrine of implied terms has been applied by thecourts, it can be stated that the prevailing judicialattitude towards it is still one of some caution. 13For example, MacKinnon L.J. in 1939 13 observed asfollows: "I recognise that the right or duty of acourt to find the existence of an implied term orimplied terms in a written contract is a matter to beexercised with care; and a court is too often invitedto do so upon vague and uncertain grounds." Theattempt to make use of it to enable the courts toreview generally and entirely readjust the rights orobligations of the parties to a bargain when they haverun into some unexpected difficulties has met with arebuff. 14 Had it been so extended, the consequencedescribed by Denning L.J. would have ensued, i.e.,the courts would have "seriously damaged the sanctityof contracts." 15IMPOSSIBILITY OF PERFORMANCEThe implied term doctrine proved a most usefulinstrument in the hands of the judges in developingmeasures of relief in cases of supervening impossibilityof performance or the frustration of contracts.At common law if a person bound himself by contract,13 Shirlaw v. Southern Foundries, Ltd. [1939] 2 "K.B. 206, 227.14 See British Movietonews, Ltd. v. London District Cinemas,Ltd. [1952] A.C. 166; Davis Contractors, Ltd. v. FarehamU. D. C. [1956] 1 Q.B. 302.16[1956] 1 Q.B. 302, at p. 308.