Types of Terms (Implied) (2)
AO2 (Common Law): This shows how judges imply terms in many commercial cases because both parties expect the judges to imply the terms. or good reasons as under the common law they want to make good sense of an agreement because they want to avoid uncertainty in the law.
2. Custom: Here a term can be implied via custom so long as there is evidence for 'long use'.
CASE: "Hutton v Warren". It was custom that on termination of a leasing agreement, the tenant was entitled to seed and labour.
However, if an express term conflicts with custom, then the express term takes precedence.
CASE: "Walfords Case". It was custom that ships were chartered and paid for when the ship was being used. As the express term overruled the customary right, the ship payment was paid at the time of the contract.
AO2 (Custom): There is a reluctance to improve contracts through implied terms at common law because they interfere with the bargain that has been struck by the parties. This can cause uncertainty if the deal that has been made is interfered with.