Guidance On The Cardinal Rule For Implying Terms

Guidance on the cardinal rule for implying terms

RPC review the English Court of Appeal’s 2017 decision in Irish Bank Resolution Corp Ltd (In Special Liquidation) v Camden Market Holdings Corp, where the CA held that a term could not be implied into an agreement because, although it was linguistically consistent, it was substantively inconsistent with the express terms.  The authors observe that the decision provides a reminder, if it was not already clear from the earlier Marks & Spencer case, of the cardinal rule that implied terms must not contradict express terms, and that the traditional business efficacy and officious bystander tests are still the correct tests to apply.


About Phillip Rompotis

Phillip practices as a barrister and arbitrator in Hong Kong. He has over 25 years’ litigation and arbitration experience in commercial disputes relating to construction & engineering, financial services, joint venture & shareholders agreements, technology, trusts, property and landlord & tenant. He is a Fellow of the Chartered Institute of Arbitrators, the Hong Kong Institute of Arbitrators, the Singapore Institute of Arbitrators, the Malaysian Institute of Arbitrators, and a member of various lists/panels of arbitrators.


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