Discuss the development of Implied Terms in English Contract Law and how this is reflected in the current Sale of Goods Legislation.

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Discuss the development of Implied Terms in English Contract Law and how this is reflected in the current Sale of Goods Legislation.

   English Legal system started to be alive from 1066, when the first three Exchequer, Common Pleas and Kings Bench courts were established. At that time, the disputes were not that difficult as it appears in our days (implied terms came into contract only after 900 years) and bribery, misuse of power (judges would get the case in favour who is a friend or got the money (bribery)) could be seen and as there were three courts, people living with far distance did not use the service of it (courts). In the 17th century courts become more independent. Judges would choose the previous cases (with relevant facts) apply the law (those days one) and take the decision.

   In English Contract Law an agreement is legally binding in the presence of the following:

  1. Intention to be legally bound. Where legal consequences should be accepted.
  2. Offer. Must be two parties: Offeror (a person who makes an offer) and Offeree (the person who receives the offer). If the Offeror made an offer (which should not be vague) to an Offeree, it can not be changed legally, unless it will become a counter offer as in Hyde v Wrench. There for, an offer should not be an invitation to treat. But in the case of Carhill v Carbolic Smoke Ball an offer was made in advertising it in the newspaper.
  3. Acceptance. It can not be a counter offer and it should be accepted with the term of offer (for instance: the price of the good that is offered). It can be done by post, email, fax, phonecall or by word, but Offeree must know that Offeror has got an answer. .
  4. Consideration. It may take the form of an act but may also take the form of promise. Consideration must move from the promisor 
  5. Capacity, Legality. The goods can be sold or bought legally (no guns or drugs can be on sale by law).

The contract, made under the law had an expressed term (both parties would be making it, like one of them is selling goods and the other one is buying it  ), but some of them were unfair, some agreements may not be in the contract, parties making the contact had little  time, or one of the sides would think that it is a part of a contract (got nothing to do with services they are providing or a contract not agreed by the parties in words at the time of the agreement), not solved by two bargaining parties, or one of the parties would disclose important information that would affect the sale (or the price of good / product) and the most cases, the consumer would be cheated by the seller. To protect buyers right, judges had to put an implied terms in contract law. There are three way of where the terms could be implied:

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    1 By custom. The Hutton v Warren (1836), where employee during to the end of contract should have same rights (or should be treated same) as the rest of the land tenants (whose contracts has not expired or has no final date). So “the person wishing to rely on the custom must produce convincing factual evidence of its existence and general acceptance”, where the tenant continued to cultivate the land, what the landlord had insisted.

    2 By the common law.  The Moorcock (1889) case, where the owners of the ship "Moorcock" contracted for space at a wharf owner's ...

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