UK: Express Or Implied? Clarification On Implied Terms In Construction Contracts

Last Updated: 14 November 2011
Article by John Starr

Insufficient thought is often given to implied terms when parties enter into construction contracts.  So much time and effort is put into ensuring that all the necessary express terms are incorporated that parties often neglect the fact that many terms are implied anyway and that some of those implied terms can't be contracted out of.

Generally speaking, there are two ways in which terms can be implied into a contract: either by statute or by common law.

Terms implied by statute

The following terms are implied by statute:

1. The Local Democracy, Economic Development and Construction Act 2009 implies into a construction contract the payment provisions from the Scheme for Construction Contracts unless it already contains an "adequate mechanism" for determining what payments become due and when.  Likewise the right to refer a dispute arising under the contract to adjudication.

2. The Late Payment of Commercial Debts (Interest) Act 1998 implies into a contract the right to interest on late payments at the rate of 8% over base unless it already contains a "substantial contractual remedy for late payment".

3. The Contracts (Rights of Third Parties) Act 1999 implies into a contract a right for a third party to enforce a contractual term provided that the contract expressly provides for it.

4. The Supply of Goods and Services Act 1982 implies into a contract terms that goods supplied will be of satisfactory quality, and that services will be provided with reasonable skill and care and within a reasonable time.  Similar terms are also implied by common law.

5. The Defective Premises Act 1972 implies into a contract for the provision of a new dwelling a term that the dwelling, when completed, will be reasonably fit for human habitation.

Terms implied by common law

The following terms have been found to be implied by common law:

1. That a supplier of professional services will use the care and skill to be expected of an ordinarily competent and experienced member of his profession.

2. That goods and materials supplied will be of good quality and reasonably fit for their purpose.

3. That the employer will give the contractor possession of the site within a reasonable time.

4. That the employer will cooperate so as to enable the contractor to carry out the works in a regular and orderly manner and not hinder or prevent him from so doing.

5. That the contractor will carry out the works in a good and workmanlike manner.

Interestingly, however, the following terms have been found not to be implied:

1. That a sub-contractor will execute his works with such diligence and expedition as is reasonably required to meet the programme dates.

2. That the employer will ensure that the site is reasonably free from rubbish and other debris to enable the works to proceed.

3. That the site will comply with basic health and safety requirements.

4. That the contractor will proceed regularly and diligently.

5. That the employer warrants the practicability of the design.

6. That the contractor has the right to an extension of time for later phases of work where earlier phases have been delayed and extensions granted.

7. That the works will be fit for purpose on completion.

8. That the contractor will have uninterrupted possession of, and access to, the site.

Terms implied ad hoc to specific contracts

In addition to implied terms of general application, the courts can also imply terms into specific contracts if it's necessary to give them "business efficacy", in other words to make them work.  In general, the courts will assume that the parties to a contract have expressed every material term which they intended to express.  They won't imply additional terms simply because the contract would be better if they did, or because it would be reasonable to do so.  Any implied term has to be necessary to make the contract work, it must be so obviously missing that "it goes without saying", it must be capable of clear expression and it must not contradict any existing express term of the contract.

The leading case on this point was called The Moorcock.  In that case, the owners of The Moorcock, a cargo boat, contracted with the owners of a jetty on the Thames to moor there for the purpose of unloading.  When the tide went out, The Moorcock struck a stone ridge on the river bottom and was damaged.  The contract made no mention of the state of the river bottom.  Nevertheless, the Court of Appeal found in favour of the owners of The Moorcock.  They decided that it was an implied term of the contract that the jetty owners would take reasonable care to ensure that the mooring was safe and would warn boat owners if it was not.

In the subsequent case of Irwin –v- Liverpool City Council, however, the House of Lords refused to imply a term into the tenancy agreement of a ninth floor flat in a tower block that the landlord would keep the common parts in good repair, merely implying a term that he would take reasonable steps to ensure that the lifts worked and the staircases were lit.  Although it might have been reasonable to have gone further, it wasn't "necessary".

It's important to bear in mind, therefore, when negotiating the terms of a construction contract, that the law implies a number of terms into the contract anyway, many of which can't be contracted out of, that some of the terms you might expect won't be implied, and that it's difficult to get the court to imply additional terms on an ad hoc basis unless they're absolutely necessary and so obvious that it goes without saying.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions