Terms implied by custom or out of business practice : In addition to implied terms imposed on the parties by operation of law and those apparently representing the intention of the parties, terms may also be implied by virtue of custom or usage. To regard customary practice as being based on the presumed intention of the parties is somewhat unrealistic. If a custom is regarded as reasonable, it will bind the parties, even though they How a particular term of the contract is to be classified is important because it impinges on the remedial consequences of a breach of that term. At one stage, the remedy available to a party in the event of a breach of contract by the other would depend on how the broken term was classified. In this regard, English law has drawn a distinction between conditions of the contract and

doi:10.4324/9781843141518-119

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In addition to implied terms imposed on the parties by operation of law and those apparently representing the intention of the parties, terms may also be implied by virtue of custom or usage. To regard customary practice as being based on the presumed intention of the parties is somewhat unrealistic. If a custom is regarded as reasonable, it will bind the parties, even though they How a particular term of the contract is to be classified is important because it impinges on the remedial consequences of a breach of that term. At one stage, the remedy available to a party in the event of a breach of contract by the other would depend on how the broken term was classified. In this regard, English law has drawn a distinction between conditions of the contract and

ABSTRACT

In addition to implied terms imposed on the parties by operation of law and those apparently representing the intention of the parties, terms may also be implied by virtue of custom or usage. To regard customary practice as being based on the presumed intention of the parties is somewhat unrealistic. If a custom is regarded as reasonable, it will bind the parties, even though they might not have been aware of it.62 If the express terms of a contract are inconsistent with some customary practice, then the custom will not be binding, and will be regarded as unreasonable.