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A contract consists of various terms which set out the rights and duties of the parties. Terms may be either express or implied. Express terms are those which are specifically or explicitly, whether by writing or orally, incorporated into the agreement. Implied terms can for the moment be described as terms which the parties have not expressed as terms of their contract but which are nevertheless deemed to form part of the agreement. Generally, a contract will consist of a mixture of express and implied terms.

The relative difficulty of establishing the terms of a contract may depend on the form which the contract takes. The task is easier where the parties have purported to incorporate all the terms of their agreement into a single, signed document. In such a case there is a presumption that the document was intended to include all the terms of their agreement (Gillespie v Cheney [1896] 2 QB 59). The task may be harder where none of the terms are expressed, either in writing or orally, leaving all the terms to be implied from the conduct of the parties and the surrounding circumstances (see eg Re Charge Card Services [1989] 1 Ch 497). In between these two extremes are those contracts consisting of a mixture of express (written and/or oral) and implied terms.

We begin by examining express terms.

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