analyses of specific situations rather than from conceptualising a general contract of employment.292 The absence of an explicit and flexible model of contract during the formative years of English labour law contributed to its development in patches, unsystematized and with inadequate coverage.A general starting point was that the terms of the individual contract were to be found in the contract, in statutes or in case law. However, individual contracts rarely fix the terms of the agreement, and statutes concerning the same matter were never passed. Consequently, English law on the contract of employment has been judge-made. As in other Western countries, English law presupposes that a contract contains no more than the terms that the parties have agreed upon. If the individual contract is silent in a specific respect, the courts can “read” a term into the agreement, primarily either as terms implied of fact or terms implied of law. Theoretically, the judges pretend to use a method that focuses on the parties’ tacit intentions.293 In the case of “implied terms of fact” the court fills the contract’s loophole by implying or imposing a term that is considered to be “reasonable” with regard to the circumstances of the individual matter. If a party wants a certain condition to be implied, he or she must convince the judges either that the condition was so evident, that nobody cared to mention it 294 or that it is necessary for giving the contractual “business efficacy”. A third variant concerns cases in which the court wants to reach a fair solution by imposing a condition, although neither facts nor circumstances p a r t i v, c h a p t e r 6 146 292 Veneziani 1986, pp. 59-61; Supiot 1994, pp. 15-16. 293 On “implied terms” see for example Anderman1993, pp. 35-44; Selwyn1996, p. 9:53; Pitt 1995, pp. 81-89; Hepple & Fredman1992, pp. 146-147;Atleson1983, p. 14; Lewis 1990, pp. 21-26; Bowers & Honeyball 1993, pp. 42-45. 294 The classical example was given by Justice MacKinnon (LJ) inShirlaw v Southern Foundries (1926): a term which never has been expressly mentioned, still must be considered to be agreed upon, if the parties when asked if it was valid should burst out: “Oh, of course!”. Bowers & Honeyball 1993, p. 43.
RkJQdWJsaXNoZXIy MjYyNDk=