Implied term: Difference between revisions

Implied term (view source)

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 Under English law at least, legally the statement "Party A may do X” is the same as “Party A may, in its sole and absolute discretion, do X”, by simple application of the above principle. Reasonableness cannot be implied as a matter of common law as the term makes perfect sense without it.
-But, as any fule kno, adding “, in its sole and absolute discretion,” to a contract and asking a diligent opposing solicitor to evaluate it is to wave a red rag at a bull. This will inevitably be adjusted to “, in a commercially reasonable manner”. It will be hard to resist that change. Why ''should'' your client be able to do x, after all, in a manner which is not commercially reasonable?
+But, as any fule kno, adding “, in its sole and absolute discretion,” to a contract and asking a diligent opposing solicitor to evaluate it is to wave a red rag at a bull. This will inevitably be adjusted to “, in a [[commercially reasonable manner]]”. It will be hard to resist that change. Why ''should'' your client be able to do x, after all, in a manner which is not commercially reasonable?
 So under English law, if one really wants a “sole and absolute” right to do something, one's best tactic is to not bang on about it. If we say “Party A may do X” we have a fighting chance that our opponent won’t think "crikey! That means they have an unfettered right to do that however they please!" and seek to negotiate the language.