5.3 Express vs Implied

The terms of a contract can be expressed or implied. Express terms are clearly written or spoken. Implied terms are not stated but come from the law, custom, or how the parties behave. Both are important for deciding the rights and duties of each side.

Express Terms

Express terms are the parts of a contract that both sides clearly agree on, either by talking about them or writing them down. These terms explain exactly what each side must do and what they will get in return. They help avoid confusion and make sure both sides understand their responsibilities.

Clarity and Certainty

Express terms are clear and straightforward. They are written or spoken in a way that makes the agreement easy for both sides to follow. This clarity builds trust and helps both parties rely on the terms as a strong base for their contract. By reducing confusion or misunderstandings, express terms make it easier for each side to meet their responsibilities and fulfill the agreement successfully.

Priority of Implied Terms

Express terms are usually more important than implied terms in a contract. This means that if there’s a disagreement between what is clearly agreed (express terms) and what is assumed (implied terms), the express terms will normally be followed.

However, express terms must follow the law and be fair. In Les Affréteurs Réunis SA v Walford [1919] AC 801, a shipbroker, Walford, was promised a commission in a contract. The shipowners said that, based on custom, the commission was only payable if the ship earned money. The court decided that the contract’s express terms, which said the commission was owed no matter what, were more important than the implied custom. This case shows that clear, written or spoken terms in a contract are respected as long as they are legal and reasonable.