Implied terms cannot cure incomplete contracts: Wells v Devani [2016] EWCA Civ 1106

03/01/2017


The Decision Below

HHJ Moloney QC found that a contract had been formed during a telephone conversation in which an estate agent (Mr Devani) had informed a developer (Mr Wells) that his standard terms were 2% plus VAT. Shortly afterwards, Mr Devani contacted a potential buyer and an offer to buy was made and accepted by Mr Wells. Only later did Mr Devani provide his terms of business. HHJ Moloney QC found that, although the event which gave rise to a right to commission had not been specified, a term could be implied that payment would be due “on the introduction of a person who actually completed the purchase”, this being the least onerous term necessary to give business efficacy to the parties’ intentions.

The Court of Appeal’s Decision

The Court of Appeal, by majority, overturned HHJ Moloney QC’s decision.

Lewison and McCombe LJJ noted that 

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