Commercial Court

CL-2022-000025 - [2025] EWHC 2331 (Comm)

Fecha: 12-Sep-2025

Terms of the SPA

Terms of the SPA

Implied terms

103.

As noted above, each side contended that the SPA contained an implied term.

104.

Mr Kerr argued there was an implied term that settlement of the SPA was to be effected electronically using CREST (the “Electronic Settlement Implied Term”). In his written opening, he said that this was “as per the standard market practice” and that it was the only way that he could be satisfied that Mr Perelman “had good title to the shares and had not already sold them on”.

105.

Mr Perelman contended there was an implied term relating to co-operation between the parties. As expressed in his written opening, it was a term that the parties to the SPA would not frustrate settlement of the SPA occurring and/or would co-operate to take reasonable steps to ensure settlement occurred (the “Co-operation Implied Term”).

106.

There was no argument about the legal approach to the implication of terms, which was authoritatively restated in Marks & Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2016] AC 742. By way of useful summary, Mr Lemer drew attention to:

The explanation given by Lord Hodge in Ali v Petroleum Company of Trinidad and Tobago [2017] UKPC 2; [2017] ICR 531 at paragraph 7:

“It is enough to reiterate that the process of implying a term into the contract must not become the re-writing of the contract in a way which the court believes to be reasonable, or which the court prefers to the agreement which the parties have negotiated. A term is to be implied only if it is necessary to make the contract work, and this it may be if (i) it is so obvious that it goes without saying (and the parties, although they did not, ex hypothesi, apply their minds to the point, would have rounded on the notional officious bystander to say, and with one voice, ‘Oh, of course’) and/or (ii) it is necessary to give the contract business efficacy. Usually the outcome of either approach will be the same. The concept of necessity must not be watered down. Necessity is not established by showing that the contract would be improved by the addition. The fairness or equity of a suggested implied term is an essential but not a sufficient pre-condition for inclusion. And if there is an express term in the contract which is inconsistent with the proposed implied term, the latter cannot, by definition, meet these tests, since the parties have demonstrated that it is not their agreement.”

ii)

And the pithy summary given by Flaux C and Foxton J in Standard Chartered plc v Guaranty Nominees Limited [2024] EWHC 2605 (Comm) at paragraph 42 (with references to the judgment in the Marks & Spencer case):

“i)
An implied term must either be necessary to give business efficacy to the contract, meaning that the contract would lack commercial or practical coherence without the term ([17] and [21]) or be so obvious that it goes without saying ([16]).
ii)
The term to be applied must be capable of clear expression ([18]), not contradict any express terms of the contract ([28]); and be reasonable and equitable, although a term which meets the previous requirements will almost certainly be reasonable and equitable ([21]).”

107.

In addition to contending that the term was (to use a shorthand) necessary / obvious, as a basis for the Electronic Settlement Implied Term, Mr Kerr also relied on the fact that a term can be implied into a contract on the basis of custom and usage. Such a term may be implied where the usage or custom is “invariable, certain and notorious” (see Crema v Cenkos [2011] 1 WLR 2066, Aikens LJ at paragraph 6; Lehman Brothers International (Europe) (in administration) v Exotix Partners LLP [2019] EWHC 2380 (Ch), Hildyard J at paragraph 158. The following summary is set out in Chitty on Contracts (35^th ed.) at paragraph 17-036:

“If there is an invariable, certain and general usage or custom of any particular trade or place, the law will imply on the part of one who contracts or employs another to contract for him upon a matter to which such usage or custom has reference a promise for the benefit of the other party in conformity with such usage or custom; provided there is no inconsistency between the usage and the terms of the contract. To be binding, however, the usage must be notorious, certain and reasonable; and it must also be something more than a mere trade practice.”