Implied terms — again

These days cases at the highest level about implied terms in commercial contracts seem to appear like London buses. Another today, in the Supreme Court, was Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd & Anor [2015] UKSC 72 (available on BAILII). The issue was of little interest except to landlord and tenant enthusiasts: namely, if a tenant exercises a break clause having paid a whopping quarter’s rent shortly beforehand, is there an implied term allowing him to get back a proportionate part of it? (the answer, if you must know, is No).

What matters is that their Lordships showed a distinctly conservative trend, emphasising that business necessity, or something close it it, had to be shown: the cases requiring it, said Lord Neuberger at [21], represented “a clear, consistent and principled approach”. Distinct scepticism was shown towards any attempt to move to “just and reasonable” or some similar formulation, on the basis of suggestions in the Belize Telecom case that implication of terms and interpretation of contracts were really just different sides of the same Rubik’s cube.

For the benefit of shipping enthusiasts, Bingham LJ’s statements in The APJ Priti [1987] 2 Lloyd’s Rep 37, on implications of a prospective safe port warranty in a voyage charterparty, received the imprimatur of Lord Neuberger (with whom Lords Sumption and Hodge agreed).

AT

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