Parties must be careful to specifically contract for a desired outcome. BC Supreme Court denies implied term on basis of presumed intention. Without an evidentiary basis for an implied term, and in the absence of the obviousness of an implied term, parties will be held to their express bargain.
This is another case of a party seeking to imply terms into a contract. In this case, a purchaser of a motel bargained for the vendor to install or repair a septic system, which was to be completed by an authorized industry practitioner holding a registration certificate issued by the Applied Science Technologists & Technicians of British Columbia (a "Qualified Person"). A letter signed by a Qualified Person stating that the system met the Ministry of Health requirements and had been installed and repaired by a Qualified Person was agreed to be conclusive proof of the completion of this covenant. There were defects with the septic system, and, as a result, the purchaser sought to retain a holdback to cover the costs of that defect. The purchaser claimed that there was an implied term in the contract that the septic system would work properly. The judge noted that “absent some evidentiary basis that the parties agreed it was implied that the vendors were liable for any defects in the septic System after repair or installation such a term cannot be implied into the contract.” She found no such basis, that the provision regarding the septic system was clear and unambiguous and that this covenant had been fully met. A term that the vendor would be liable for any defects with the repairs or installation was something that could have been, and if the parties so desired, should have been, expressly agreed upon.