Implied terms can be added to your contract, without your knowledge. They can arise from custom, or be imposed by statute (eg the Construction Acts 1996 and 2009). Lastly, they can arise from decisions of the courts in cases going back 150 years or more.
Court decisions cannot override the terms you have written in your contract. They have to fit ‘in between the gaps.’
Adopting Implied Terms
Occasionally, the writers of a standard form want to adopt an implied term into their contract, like this design standard of care under JCT DB 2011:
“…the Contractor shall… have the like liability to the Employer, whether under statute or otherwise, as would an architect or…..other appropriate professional designer holding himself out as competent to take on work for such design who, acting independently under a separate contract with the Employer, has supplied such design for or in connection with works to be carried out and completed by a building contractor who is not the supplier of the design.”
The meaning of this clause is not plain: you need to know what the liability of an architect or other designer is ‘under statute or otherwise.’
I don’t like clauses which rely on the readers to ask further questions as I don’t like unnecessary complexity.
Implied Design Liability
The implied liability of a construction professional is to ‘use reasonable skill and care’. This is not a very high standard. According to Bolam v Friern, a professional meets this standard if:
- she is reasonably competent
- based on industry standards or professional conduct rules at the time
- in accordance with generally accepted industry practices (even if not everyone agrees with those practices).
A more poetic explanation of what is required …
Paragon, Polymath or Prophet?
“… a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinarily assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field…He must bring to any professional task he undertakes no less expertise, skill and care than any other ordinarily competent members of profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon, combining the qualities of polymath and prophet.”
Staying on top of good practice and changes in your profession, by attending good quality training, seems to be just about all that is required on top of basic competency. Most clients are hoping for a little more than Ms Average when they appoint a professional.If that’s what you want, you’ll have to write it into your contract.
But often that is all your contract will require of you.
Cases: Bolam v Friern Hospital Management Committee  2 All ER 118; Bingham LJ, Eckersley v Binnie & Partners 1988 18 Con LR 1
(c) Image:Mark Holdgate. Used with permission.