The Role of Precedent in the Construction and Implication of Terms in Contracts

cartereldridgepedenArticle
Written By Julie Clarke

J W Carter, John Eldridge and Elisabeth Peden
(2021) 37 Journal of Contract Law 1

J W Carter, John Eldridge and Elisabeth Peden, ‘The Role of Precedent in the Construction and Implication of Terms in Contracts’ (2021) 37 JCL 1

Abstract

This article explores the interaction between the processes by which statements of intention are construed or terms are implied. The vehicle for the exploration is the decision in Devani v Wells, where the Supreme Court of the United Kingdom held, surprisingly, that the processes led to the same conclusion in relation to an alleged oral contract to pay commission to an estate agent. ‘Construction’ was used to deduce agreement to an essential term from a conversation during which the parties remained silent on the matter. The same term was then implied on a factual basis. The contention of the article is that the reasoning is unconvincing on both issues. Given the court’s reasoning, it should have concluded that the essential term omitted during the conversation was a term implied in law.

Julie Clarke
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