Terms implied by Courts: a comparative appraisal of the law in Malaysia, the United Kingdom and Australia
The normal contract is not an isolated act, but an incident in the conduct of business or in the context of some more general relation such that of landlord and tenant or employer-employee. It will be usually set against a background of usage. In addition, therefore to the terms which the parti...
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| Format: | Conference or Workshop Item |
| Language: | English |
| Published: |
2014
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| Subjects: | |
| Online Access: | http://irep.iium.edu.my/42722/ http://irep.iium.edu.my/42722/ http://irep.iium.edu.my/42722/1/Terms_Implied_by_Courts-_Akram.pdf |
| Summary: | The normal contract is not an isolated act, but
an incident in the conduct of business or in the
context of some more general relation such that of
landlord and tenant or employer-employee. It will
be usually set against a background of usage. In
addition, therefore to the terms which the parties
have expressly adopted there may be other
imported into the contract from its contexts. The
implications may be derived from custom or rest
upon statute, or may be inferred by the judges to
reinforce the language of the parties and realise
their manifest intention. Thus addition to terms
imported into particular type of contract, the court
may in any class of contract, imply a term in order
to repair an intrinsic failure of expression. The
document which the parties have prepared may
leave no doubt as to the general ambit of their
obligations; but they may have omitted, through
inadvertence or clumsy draftsmanship, to cover an
incidental contingency, unless remedied, may
negative their design. In such a case the judge may
himself supply a further term, which will implement
their presumed intention, and give „business
efficacy‟ to their contract. In doing so he purports
at least to do merely. What the parties would have
done themselves, had they thought of the matter.
The assertion of this judicial power to imply terms
has been asserted by the courts first utilising the
business efficacy test, the officious bystander test,
both the combined tests, and latterly through the
Privy Council‟s judicial eyes, reasonableness and
equitable tests. This paper briefly conducts a
critical appraisal of the tests in England, Malaysia
and Australia. |
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