Can an essential term be implied to complete an incomplete contract?
Lunchtime Series 04 November, 2019
Emeritus Professor John Carter and Elisabeth Peden SC
Dixson Room, Mitchell Wing, NSW State Library
12:30PM to 02:00PM
A simple fact situation confronted the Supreme Court of the United Kingdom in Devani v Wells [2019] UKSC 4. However, the court had to deal with an important question of principle. If a contract is incomplete because it omits an essential term, can the court fill the gap by way of implied term? The court said the answer is ‘yes’, disagreeing with the Privy Council in Scancarriers A/S v Aotearoa International Ltd [1985] 2 Lloyd’s Rep 419 at 422, a case accepted in Australia.
Other relevant aspects of Devani v Wells discussed in the seminar are:
- the distinction between terms implied in fact and terms implied in law
- whether an offer to contract can be inferred from silence
- whether an estate agent's right to commission is determined under a default rule
Emeritus Professor John Carter is regarded as one of Australia’s pre-eminent contractslawyers. He is a consultant to the international law firm Herbert Smith Freehills and GeneralEditor of the Journal of Contract Law. John previously held a personal chair in Commercial Lawat the University of Sydney. He has authored many leading works on contract law, includingCarter on Contract (LexisNexis Butterworths) and The Construction of Commercial Contracts(Hart Publishing, Oxford).Elisabeth Peden SC is the author of Good Faith in Contracts which is the first book publishedin Australia on this area of contract law and a co-author of Contract Law in Australia (Lexis-Nexis). She is a Professor of Law at the University of Sydney. Elisabeth is the editor of theNSWLR and co-editor of the Commercial Law Quarterly. She practises as a barrister and mediatorfrom 3 Wentworth Chambers.