Hindsight is a wonderful thing – but irrelevant for interpreting contracts, say Sophia Purkis & Leigh Callaway
- Bou Simon v BGC Brokers LP: a salient reminder of the strict approach the court will take when deciding whether to imply a term into a contract.
The express written provisions of a contract are not, or at least are not always, the be-all and end-all when determining the terms governing the relationship between contracting parties. Often consideration can and should be given to the specific circumstances of a contract, including pre-contractual representations and/or post-contractual variations. Moreover, it is a well-established tenet of English contract law that terms can be implied into a contract, whether on the basis of usage, custom, the parties’ previous course of dealings, statute, or in order to reflect the intention of the parties at the time the contract was made.
It is in respect of this last category that the recent Court of Appeal decision in Bou Simon v BGC Brokers LP [2018] EWCA 1525 (Civ), [2018] All ER (D) 59 (Aug) is of particular interest.
