Common Law Rights and Remedies

The general rules governing the implication of terms by the courts, which apply to general contracts, also apply in the same way to construction contracts. A number of implied terms specific to construction contracts also exist, many of which relate to design and quality and are closely aligned with the law of sale of goods. Much of the relevant case law on implied terms comes from England, however it remains applicable to Irish law. However, it is important to bear in mind that the existence or otherwise of specific implied terms within a particular contract will be judged on a case by case basis.

The common law has developed a number of principles by which a term may be implied into a construction contract:

the term is required to make the contract work - the "business efficacy" test the term is implied by law, such as by the Sale of Goods Acts the term is a specific custom or practice the term can be imputed from the intention of the parties In order to imply a term for business efficacy, the court must be satisfied that the term is:

reasonable and equitable; is necessary to give business efficacy to the contract, i.e. no term shall be implied if the contract is effective without it; is so obvious that 'it goes...