| 11. | Stuart-Smith LJ held that an implied term in law can prevail over an express term.
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| 12. | Such implied terms operate as ad hoc gap fillers.
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| 13. | "The expression'implied term'is used in different senses.
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| 14. | The primary implied term of an employment contract that may be broken is mutual trust and confidence.
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| 15. | But in common with other implied terms, it must yield to the express provisions of the contract.
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| 16. | If they are a contract, then it is an implied term that the discretion should be exercised fairly.
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| 17. | We are well able to imply it now in the same way as judges have implied terms for centuries.
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| 18. | But before 1977, legislation to directly regulate unfair terms did not exist, and jurisprudence on implied terms was underdeveloped.
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| 19. | The implied term which exempts the servant is just as plausible as the implied term which makes him liable.
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| 20. | It should be noted, however, that " Holmes v Keys " was not a case about an implied term.
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