Contract assent and content MC 4

A term may be implied into a contract

1. by statute

2. by trade practice unless an express term overrides it

3. by the court to provide for events not contemplated by the parties

4. by the court to give effect to a term which the parties had agreed upon but failed to express because it was obvious

5. by the court to override an express term which is contrary to normal custom


A. 2 and 3 only

B. 1, 2 and 4 only

C. 1, 4 and 5 only

D 1, 3, 4and 5 only


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1 個解答

  • 1 十年前

    The answer is B.

    1 is true. Control of Exemption Clause Ordinance 管制免責條款條例 is an example.

    2 is true too. Trade practice is something so obvious to parties os that industry that became needness to state in the contract. But in any free society, the court respects parties right of the parties to make contract in their own term which may contravene the practice.

    3 is not true. If the parties themselves cannot anticipate the situation, how can the court fo so far to create contract terms that satisfy the parties? Who's interest should the court protect? How far should the court go in creating new contract terms? Why should the parties be bound by things they didn't know or anticipate when they sign the contract?

    4 is true. Contract is an agreement and consent of the parties. Anyone who suffered from other's breach of the contract can seek the court's assistance and enforcement. Remember, one element of a legally binding contract is the "intention to create legal relationship." The problem is only on proving that unexpressed term. How can you prove in court that an unexpressed term which the other parties agreed upon.

    5 is wrong too. As in 3, a court will honour a term it is clearly the intention of the parties to create a contract term which is different from a custom. Parties' intention will be respected and honoured by the court if the intention (expressed in the contract term) is clear enough to be enforceable. It is just different from the custom or practice; it does mean it is illegal. There's no reason for the court not to enforce clear intention of the parties.

    資料來源: Own knowledge. I have a LL.B, PCLL and LL.M