Tesco Stores Limited v USDAW [2024] - Is it Easier to Imply Terms in a Contract?

Introduction

The test for implying terms into a contract seemed finally to have been clarified and rendered sensible as a result of the Supreme Court’s judgment in Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd.

In the Supreme Court’s judgment in Tesco Stores Ltd (Respondent) v Union of Shop, Distributive and Allied Workers and others (Appellants) [2024], however, Lord Leggatt made a number of remarks that would at first blush appear not only to have considerably lowered the threshold for implying contractual terms, but also to have breathed new life into his late and arguably unlamented doctrine of implied contractual obligations of good faith as formulated in Yam Seng Pte Ltd v International Trade Corporation Ltd.

In particular, Lord Leggatt’s remarks included a potentially fundamental erasure of the difference between absolute contractual rights, and contractual discretions, and an attempt to extend the Braganza duty formulated in the Supreme Court’s judgment in Braganza v BP Shipping Ltd and another to extend to the exercise of absolute contractual rights.

This webinar will look at the judgment in Tesco and consider what, if anything, it means for commercial contracts, the test for implied terms, and the applicability of the Braganza duty to absolute contractual rights - and what you can say to the other side when they seek to rely on this judgment to argue the existence in your contract of an unpalatable implied term and/or a Braganza fetter upon the exercise of your absolute contractual rights.

What You Will Learn

This webinar will cover the following:

• The test for implying terms into a contract
• The Braganza duty
• The background to and findings in the Supreme Court’s judgment in Tesco
• The impact of Tesco upon the test for implication of terms into a commercial contract
• The impact of Tesco upon the applicability of the Braganza duty to absolute contractual rights

This pre-recorded webinar will be available to view from Tuesday 16th September 2025

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