Andrew Burns QC & Ishaani Shrivastava examine the implication & construction of contract terms following Marks & Spencer
- The importance of the traditional tests for implied terms.
- Commercial parties should not rely on the courts to correct contracts.
The circumstances in which courts will imply a term into a commercial contract and the Hoffmann approach to contractual interpretation has been a matter of controversy between practitioners, academics and even between judges in recent years. Marks & Spencer v BNP Paribas Securities [2015] UKSC 72, [2016] 4 All ER 441 gave the Supreme Court an opportunity to clarify this vital area of the law of contract. But has the Supreme Court’s gentle rejection of Hoffmann’s unitary theory of contractual construction taken the courts into calm or stormy waters in the months following its definitive rulings?
“Has the Supreme Court’s gentle rejection of Hoffmann’s unitary theory of contractual construction taken the courts into calm or stormy waters? ”
Implied rent rebate?
The question in Marks & Spencer was whether a rent
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