Express terms of a contract

Authored by Tony, D'Agostino, Partner, Swaab Attorneys; Ilija Vickovich, Lecturer, Macquarie University; Richard Skopal, Principal, DWF (Australia); Peter Moran, Director, Donaldson Trumble Legal (Vic); Luckbir Singh, Partner, MacDonnells Law and Simon LaBlack, LaBlack Lawyers Pty Ltd (Qld); Gary Thomas, Special Counsel and Anthony Davis, Director, McWilliams Lawyers (WA); Philip Page, Retired Partner, Mellor Olsson (SA); Tim Tierney, Principal and Sebastian Thomas-Wilson, Principal, Tierney Law (Tas); Tony Morgan, Partner, Andrew Giles, Partner, and Cooper Hood, Associate, HWL Ebsworth (NT); Stephanie Lynch, Partner and Christine Murray, Managing Partner, Meyer Vandenberg Lawyers (ACT). Updated by the LexisNexis Legal Writer team.

The express terms of a contract are those that have been expressly included in the contract by the parties. Identifying the express terms of a contract will generally not be an issue where the contract is in writing. However, in other cases, a court may need to determine exactly what the parties have expressly agreed.

Where parties to a formed contract are in dispute over its terms, courts will have recourse to a number of fundamental rules to resolve the dispute:

• Some rules deal with determining whether any matters that have been negotiated by the parties have become part of the contract — see Guidance Note: Which terms does the contract incorporate?
• Other rules deal with interpreting the terms that are incorporated into the contract where there is disagreement about their true meaning — see Guidance Note: Construction of contract terms.
• As a guiding principle, courts endeavour to discover the true “intention” of the parties in the objective circumstances of their agreement.
• Some rules deal with certainty of terms where terms that are too uncertain are unenforceable. For example, a promise in a contract to enter a subsequent contract on similar terms is an agreement to agree and not enforceable: