Chapter 5 Key debates

Terms and breach of contract

1. Implication of terms by the courts

This is the most likely essay-style question on terms, particularly in the light of Lord Hoffmann’s explanation of the basis for the implication of terms in fact in Attorney General of Belize v Belize Telecom Ltd and the subsequent restatement of the traditional position in Marks & Spencer plc v BNP Paribas Securities Services Trust Co. (Jersey) Ltd (2015):

Kramer, ‘Implication in Fact as an Instance of Contractual Interpretation’ [2004] CLJ 384.

McLauchlan, ‘Construction and Implication: In Defence of Belize Telecom’ [2014] LMCLQ 203.

Peel, ‘Terms implied in fact’ (2016) 132 LQR 531.

In addition, there is some debate about the basis for terms implied in law:

Crossley v Faithful & Gould Holdings (2004) (see also James-Bowen v Commissioner of Police of the Metropolis (2018)).

Peden, ‘Policy Concerns behind Implication of Terms in Law’ (2001) 117 LQR 459.

2. Circumstances in which termination for breach is, or should be, available

In particular, there has been some debate about opportunism and motives, so-called ‘good’ and ‘bad’ reasons justifying withdrawal from a contract:

Brownsword, ‘Retrieving Reasons, Retrieving Rationality? A New Look at the Right to Withdraw for Breach of Contract’ (1992) 5 JCL 83.

Andrews, ‘Breach of contract: A Plea for Clarity and Discipline’ (2018) 134 LQR 117.

Another favourite debate for an essay concerns the dangers of wrongful repudiation as in Reardon-Smith Line Ltd v Hansen-Tangen (1976), Hong Kong Fir, and The Hansa Nord, i.e. the inherent uncertainties and choices facing the innocent party if it is far from clear whether the term broken is a breach of condition, or the need to ‘wait and see’ the effects of breach if it is an innominate term and to make a judgement as to their seriousness.

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