Page 938 - SUBSEC October 2017_Neat

02231020/CAPE/SPEC 2017

6

requiring payment as soon as the hire agreement was signed,
so it was held not to have been implied into the contract.

- Terms implied to give business efficacy to a commercial
contract

Parties would not enter a contract freely that had no
benefit for them or indeed that might harm them or cause
them some loss. So the courts will imply terms into a
contract that lacks them in express form in order to
sustain the agreement as a business like arrangement.
Case: The Moorcock (1889). The defendants owned a wharf
with a jetty on the Thames. They made an agreement with
the claimant for him to dock his ship and unload cargoes
at the wharf. Both parties were aware at the time of
contracting that this could involve the vessel being at
the jetty at low tide. The ship became grounded at the
jetty and broke up on a ridge of rock. The defendants
argued that they had given no undertaking as to the safety
of the ship. The court held that there was an implied
undertaking that the ship would not be damaged. Bowen LJ
explained that “In business what the transactions such as
this, what the law desires to effect by the implication is
to give such business efficacy . . . as must have been
intended.”

Clear explanation of any two methods 2 marks each [4 marks]
Case or example 1 mark each [2 marks]

(c) A commercial agreement has clearly been made.
Any other relevant point

Cases:
Carlill v. Carbolic Smoke Ball Co.
Rose and Frank v. Crompton [2 marks]

Effect of Lil’s hoarseness: Would this agreement be regarded
as frustrated? Compare Poussard v. Spiers and Pond with Storey
v. Fulham, Steel Works. See also Bettini v. Gye case on
breach of contract. [4 marks]

Cases on frustration of contract which may be helpful include

Krell v. Henry
Taylor v. Caldwell

Analysis:
Identification of issue
Definition of terms
Determination of issue with supporting case law
Soundness of argument [4 marks]
Application and Conclusion [2 marks]
Coherence [3 marks]
Total 25 marks