ABSTRACT
The terms of a contract may be express or implied. Express terms are terms that the parties agreed upon orally or in writing to form part of their contract. Where there are no express terms of the agreement, in certain circumstances the court may imply a term or terms if necessary to give business efficacy to the contract. In BP Refinery Pty Ltd v Hastings Shire Council,1
the Privy Council stated certain guidelines used by the courts to determine
whether to imply a particular term to a contract:
(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (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 term of the contract.
