Week 1 & 2 – Express Terms
Disputes arise over the terms of a contract
Five matters to consider when attempting to resolve disputes:
1. Identify the express terms agreed by the parties
2. The terms must be construed to determine their meaning and legal effect (whether
the terms apply)
3. Consider the admissibility of extrinsic evidence (parol evidence rule)
4. If the express terms are silent on an issue, it must be determined if silence is
intentional or whether there is a gap
5. Consider the effect of the statute on the party’s contractual rights and obligations
Objective Approach
The aim of the courts is to give effect to the “presumed intentions” of the parties
References to intention usually means “the intention which reasonable persons would have
had if placed in the same situation of the parties”
What are express terms?
• Terms which are an explicit declaration of a particular promise in the contract itself
• These terms must be oral or written
• This contrasts with implied terms where no declaration has been made
They may be:
1. Incorporated into the parties’ contract
- By a party signing a written document
- By notice – displaying or delivering a written document to the other party - By a
course of dealing between the parties
2. Found in statements made by the parties during their pre contractual negotiation
3. Combination of the above
Terms and the communications of the parties
Terms = those proposed by the offeror and accepted by the offeree
Challenge = where there has been a lengthy negotiation process and a formal contract has
not been written and signed
