User:Arjun Ariaratnam/sandbox

IMPLIED TERMS
Terms implied by law

Sale of goods and provision of services

''Terms implied by custom or usage in the market Con-Stan Industries of Aust Pty Ltd v Norwich Winterthur Insurance '' 1.	the existence of a custom or usage that will justify the implication of a term into a contract is a question of fact

2.	there must be evidence that the custom or usage relied upon is so well known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract; however, the custom need not be universally excepted 3.	A term will not be implied on the basis of custom or usage where it is contrary to the express terms of the agreement

4.	A person may be bound by a custom notwithstanding that they had no knowledge of it

Terms implied as a matter of fact for the purpose of business efficacy When a term is said to be implied for the purpose of business efficacy, it generally means that the partied require that term in order for the contract to work. Rules for implying a term on the basis of business efficacy set out in BP Refinery (Westernport) Pty Ltd v Shire of Hastings; Codelfa v State Rail Authority

1.	it must be reasonable and equitable to imply the term

2.	it must be necessary to give business efficacy – that is the contract will be ineffective unless the term is implied

3.	it must be so obvious that it goes without saying

4.	it must be capable of clear expression

5.	it must not contradict any express terms of the contract