Were intended to be promissory the courts use the

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were intended to be promissory, the courts use the following ‘sub-rules’: the closer in time a statement was made to finalisation of the contract the more likely it is that it was intended to be a term; if the concluded agreement was reduced to writing without the statement in question being included it is less likely that it was intended to be a term; if making the statement involved one of the parties exercising some special knowledge or skill in circumstances where it would have been reasonable for the other party to rely on that special knowledge or skill, it is more likely that the statement was intended to be a term; and the more instrumental the statement was in inducing the contract the more likely it is that it was intended to be a term. 4.1.2 Implied terms Terms will be implied into a contract either because the parties really intended them to be included or because some Act of Parliament directs that they be included. Terms can be implied into a contract in any of three ways: By trade usage or custom. If the parties are in the same trade, industrial, professional, local or other grouping and there is a settled and established practice within that group (or even just between those two parties as the result of the way in which they have dealt with one another in the past) that certain terms always apply to particular contracts, the courts will recognise the custom and enforce the terms as an intended part of the contractual obligation — provided the custom is notorious, certain, legal and reasonable and there is no evidence that the parties had any contrary intention. In this way the unwritten ‘rules’ become implied terms of the contract. By statute. There are a significant number of statutes in every country that regulate commercial behaviour generally and commercial contracts in particular. In Australia the Sale of Goods Acts, the National Consumer Credit Protection Act, the Competition and Consumer Act, the various state and territory Fair Trading Acts and others all provide for
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© Stephen Graw 2012 terms to be implied into the contracts they govern. Some statutes allow the parties to contract out of those terms. Others, especially the Competition and Consumer Act, do not. If a term is implied into a contract because of a provision of an Act of Parliament it will form part of the contract — irrespective of the wishes or intentions of the parties — and it will be enforced. By the courts exercising their inherent jurisdiction. Even where trade usage, custom and statute are silent, terms can still be implied into a contract where the courts can see that the parties really intended to include them and that they were omitted through inadvertence. The early test that the courts used to decide whether to imply a term into a contract in such circumstances was called ‘the officious bystander test’. The court essentially asked itself, if an officious bystander, overhearing the negotiations,
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