Are all terms and conditions contained in a written contract?

Nov 3, 2020

Article by: Joshua Barlow

We all know that we (should) read every word of every contract we sign, but is that the whole contract? Parties to contracts should take care when signing, as there are usually terms which are not printed in black and white.

As is often the case, there may be some terms which are inevitably implied by the express terms which the parties can read. For instance, where an express term would not make any sense without another implied term to compliment it. Some terms can also be implied by the conduct of the parties or even the very nature of the contract.

In lengthy and complex commercial contracts, there are numerous unwritten terms which may form part of the contract. To determine whether an implied term exists, our law uses the ‘officious bystander test’ to ask whether a reasonable third party would consider it to be a term of the agreement.

To make things more confusing, there may even be terms which are implied by legislation or court judgments.

It might be impossible to actually read all the terms to some agreements, but we can show you the terms you can’t see.