Interpretative, Iterative, and Kindred: Implication in Fact as Contractual Interpretation
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Implication in Fact as Contractual Interpretation 21
De Lege Ferenda (2021) Vol III, Issue i, 21-41
Interpretative, iterative, and kindred: implication in
fact as contractual interpretation
TIMOTHY KE*
I. INTRODUCTION
The eccentric proposition that a court can make a contract on the parties'
behalf by implying terms based on what it considers fair or just is, in similar or
gentler terms, said to be 'almost blasphemy. Because a judge 'finds in himself
the criterion of what is reasonable, the yardstick for determining contractual
outcomes might become unpalatably close to being measured, not by the length of
the Chancellor's foot,3 but by the foot of ajustice of the common law. If, however,
implication of terms in fact is considered an instance of contractual interpretation,
a court implying a term is squarely positioned as a reader of a contract, not an
author of one. This adjoined conception properly characterises considerations
of the commercial background (including considerations of fairness and justice),
ensuring due regard is had to the express terms of a contract and that implication
is only performed when confidently warranted according to legal principle.
This article advocates for this adjoined conception to construction and
implication, defending particularly the principles advanced by the Privy Council in
Attorney General of Belize v Belize Telecom Ltd ('Belize').' The once-dominant Belize ruling
characterised implication in fact as part and parcel of contractual interpretation,
* LLB Candidate (University of Manchester). For David, Ellen, and Lily. I am grateful to the
Journal's reviewers for helpful comments on earlier drafts. All errors and omissions remain entirely
my own.
Per Lord Wright in the 1935 Holdsworth Club lecture, cited at Liverpool City Council v Irwin [1976]
QB 319, 330 (Lord Denning MR).
2 ibid.
s A proverbial shorthand pointing to the unpredictability of English equity's reliance on a judge's
conscience, originating from Samuel H. Reynolds (ed), The Table Talk of John Seldon (Clarendon
Press 1892) 61.
4 [2009] UKPC 10.](ViewImageLocal?handle=hein.journals/delgfnda3&div=5&collection=&method=preview&ext=.png&size=3)
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Interpretative, Iterative, and Kindred: Implication in Fact as Contractual Interpretation
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