Contractual Terms

The terms of the contract are, of course, the instructions upon which both parties to the contract will act. Each party has their own respective instructions. These terms may be either Express terms – those terms which are specifically stated by the parties or Implied terms –  those terms which are said to be in the contract.

Express terms, therefore, are the terms which are expressly agreed as between the parties. The court will distinguish between promises made by the parties which are the express terms and statements of intention or fact made by the parties, which are not regarded as express terms but as ‘representations’. Even where the parties have not expressly agreed upon a term, there will at times be certain terms which are implied into the contract. In fact  – the courts will in some cases hold that the parties must have in the particular circumstances, intended certain terms to be implied into the contract. It is usually said that those terms which are necessary to give the contract ‘business efficacy’ were intended, as of a fact, to have been incorporated into the contract. Thus such terms will be implied by the courts. At Law – Governments are becoming increasingly concerned with providing statute to imply terms into particular contracts.  For example English Law imposes The Sale of Goods Act 1979 which implies into certain contracts of sale specific terms in relation to the title to the goods, the description of the goods, and the merchantable quality and fitness for purpose of the goods.