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Implied Terms — What the Contract Did Not Say

No construction contract is complete. Every project encounters situations the drafters did not anticipate. When they do, the parties disagree about their obligations — and tribunals are asked to imply a term to fill the gap. The test for doing so is narrower than most claimants assume.

5 min read · Updated 21/04/2026

In this article

1. Why gaps matter more than drafters think
2. The five-part test for implying a term
3. Terms routinely implied into construction contracts
4. Practical application in claims and dispute settings
5. Risks and mitigation
6. Conclusion

Key takeaway

The modern test for implying a term, set out in Marks & Spencer plc v BNP Paribas Securities Services Trust [2015] UKSC 72, is conjunctive and demanding. A term will not be implied merely because it is reasonable — it must be necessary, obvious, capable of clear expression, and consistent with the contract as a whole. Implied terms are a last resort, not a planning tool.

1. Why gaps matter more than drafters think

Construction disputes often arise not from what the contract says, but from what it does not say. Common examples from UAE practice include: the contract does not specify when the employer must give possession of the site; it does not address who is responsible for coordinating utilities when unforeseen services are encountered; it does not specify what happens if the employer’s design changes the scope so significantly that the original programme is no longer achievable. Each of these gaps can generate a substantial claim, and the resolution frequently depends on whether the tribunal will imply a term to fill it.

2. The five-part test for implying a term

The five conditions must all be satisfied. The term must:

1. Be reasonable and equitable
2. Be necessary to give the contract business efficacy — that is, without it the contract would be ineffective or absurd
3. Be so obvious that it goes without saying
4. Be capable of clear expression
5. Not contradict any express term of the contract

The test is conjunctive, not disjunctive. A term will not be implied merely because it is reasonable. It must be necessary or obvious. This is a high hurdle, and tribunals are reluctant to rewrite bargains for the parties after the fact.

3. Terms routinely implied into construction contracts

Despite the high threshold, certain terms are so well-established in construction contracts that tribunals imply them almost as a matter of course:

• The employer’s obligation to give timely possession of the site.
• The employer’s obligation not to prevent the contractor from completing the works (the “prevention principle”).
• The obligation of both parties to co-operate to enable performance.
• The obligation to provide necessary information within a reasonable time of request.
• The obligation not to hinder or delay the issue of instructions that the works require.

These implied obligations matter practically: a claim for extension of time or prolongation cost is frequently framed around breach of an implied co-operation or non-prevention obligation, particularly where the express notice regime has been followed but the contractual remedy is insufficient.

4. Practical application in claims and dispute settings

The implication of a term is an imprecise remedy. Tribunals are imposing their own view of what was obviously intended, which may not match either party’s actual commercial intention. The most reliable approach is always to address every foreseeable obligation expressly in the contract. Where a gap is identified during contract review, it should be closed by express amendment before works commence.

Where a contractor is framing a claim around an implied term, the pleading must be precise. It is not sufficient to argue that an implied term would be fair or reasonable. The claimant must demonstrate necessity or obvious intent by reference to the commercial matrix, the pre-contract documentation, and the nature of the works. Evidence of industry practice — including expert witness evidence on UAE construction custom — is often relevant and persuasive.

5. Risks and mitigation

The primary risk of relying on implied terms is uncertainty. A tribunal may not imply the term a claimant needs, or may imply it in a narrower form than expected. The cost of pursuing the argument to an award may exceed the value of the claim itself. Conversely, an employer who relies on the absence of an express obligation may find that an implied obligation is nonetheless found — particularly in relation to co-operation and non-prevention.

Mitigation is straightforward in principle. Conduct a thorough contract review at the outset, identifying gaps and ambiguities. Address all identified gaps by express provision before execution. During the project, where a situation arises that the contract does not expressly cover, seek written agreement from the other party on how it will be handled, rather than assuming an implied term will protect you later.

6. Conclusion

Implied terms are a last resort, not a planning tool. The best strategy is always an express term. Tribunals will fill gaps when they must, but the uncertainty of the outcome — and the cost of reaching it — makes express provision far preferable in every case. On UAE projects where programmes are tight and risk allocation is commercially sensitive, time spent on contract review at the front end is the single most cost-effective investment a contractor or employer can make.

Is your contract silent on a critical obligation?

Gaps in construction contracts rarely close themselves. If you are considering a claim framed on an implied term — or defending one — an early review of the evidential foundation can save months of argument at the tribunal stage.

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