Express Term vs. Implied Term

Attribute	Express Term	Implied Term
Definition	Specifically stated in the contract	Not explicitly stated but inferred by law or custom
Formation	Agreed upon by the parties	Arises automatically
Enforceability	Can be enforced in court	May be enforceable depending on circumstances
Clarity	Clear and unambiguous	May be subject to interpretation

Definition

Express terms are terms that are explicitly agreed upon by the parties involved in a contract. These terms are usually written down in the contract itself or verbally communicated and agreed upon. On the other hand, implied terms are terms that are not explicitly stated in the contract but are still considered to be part of the agreement based on the nature of the contract, the intentions of the parties, or the law.

Nature of Agreement

Express terms are specifically negotiated and agreed upon by the parties, making them clear and unambiguous. These terms are usually detailed and leave little room for interpretation. Implied terms, on the other hand, are not explicitly discussed but are assumed to be part of the agreement based on the circumstances surrounding the contract. These terms may not be as clear-cut as express terms and may require interpretation.

Enforceability

Express terms are easier to enforce in a court of law because they are clearly defined and agreed upon by the parties. If one party fails to adhere to an express term, the other party can take legal action to enforce the term. Implied terms, on the other hand, may be more difficult to enforce as they are not explicitly stated in the contract. The court may need to interpret the intentions of the parties and the nature of the agreement to determine if an implied term should be enforced.

Types of Implied Terms

There are different types of implied terms that may be included in a contract. Terms implied by law are terms that are automatically included in a contract based on legislation or common law principles. For example, the Sale of Goods Act implies terms into contracts for the sale of goods, such as the seller having the right to sell the goods. Terms implied by fact are terms that are inferred from the circumstances surrounding the contract. For example, if a contract is for the sale of a car, it is implied that the car is roadworthy.

Flexibility

Express terms provide parties with the flexibility to negotiate and agree upon specific terms that suit their needs. These terms can be tailored to the unique circumstances of the contract and can be as detailed or as general as the parties desire. Implied terms, on the other hand, may lack the flexibility of express terms as they are not explicitly discussed or negotiated. However, implied terms can provide a level of protection and fairness to the parties by filling in gaps in the contract.

Interpretation

Express terms are usually interpreted based on their plain meaning and the intentions of the parties at the time of entering into the contract. If there is any ambiguity in an express term, the court will look to the language used in the contract and any surrounding circumstances to determine the meaning. Implied terms, on the other hand, may be interpreted based on the nature of the contract, the intentions of the parties, and the reasonableness of the term in the circumstances.

Modification

Express terms can be modified or amended by the parties through a formal process of negotiation and agreement. If both parties agree to change an express term, they can do so by drafting a new contract or an amendment to the existing contract. Implied terms, on the other hand, may be more difficult to modify as they are not explicitly stated in the contract. Any changes to implied terms may require the parties to renegotiate the contract or seek legal advice.

Conclusion

In conclusion, express terms and implied terms are both important aspects of a contract that help define the rights and obligations of the parties involved. Express terms are explicitly agreed upon by the parties and provide clarity and certainty to the contract. Implied terms, on the other hand, are not explicitly stated but are assumed to be part of the agreement based on the circumstances. Both types of terms have their own advantages and limitations, and understanding the differences between them is crucial for parties entering into a contract.