United Kingdom, Agreements, Unwritten Terms

The Done Thing

British English has many phrases for rules that everyone knows but nobody has written down.

It’s not the done thing: It is not acceptable, although no rule forbids it.

Bad form: Behavior that breaks an unwritten rule of decency.

It goes without saying: It is part of the arrangement, although nobody said it.

Taken as read: Assumed to be agreed without being discussed.

A nod and a wink: An understanding that is never put into words.

To read between the lines: To find what was meant but not stated.

English courts will sometimes read into a contract a term that nobody wrote down. In The Moorcock, in 1889, Lord Justice Bowen said the aim is “to give such business efficacy to the transaction as must have been intended at all events by both parties.”

In 1939, in Shirlaw v Southern Foundries, Lord Justice MacKinnon described such a term as “something so obvious that it goes without saying.” If an officious bystander suggested writing it into the agreement, the parties “would testily suppress him with a common ‘Oh, of course!'”

Mutual Trust and Confidence

On 12 June 1997, in Malik v Bank of Credit and Commerce International, the House of Lords approved a term implied in every contract of employment. The employer must not, “without reasonable and proper cause,” act “in a manner calculated or likely to destroy or seriously damage the relationship of confidence or trust between employer and employee.”

No employment contract needs to state this term. The courts assume it is there.

Baird and Marks & Spencer

Baird Textile Holdings supplied Marks & Spencer for about 30 years. There was no written long-term contract. Marks & Spencer ended the relationship without warning.

Baird argued that the relationship amounted to an implied contract. On 28 February 2001, the Court of Appeal disagreed. It found the supposed agreement too uncertain and saw no intention to be legally bound. In its view, “there is no necessity to imply any contract.”

The Sewel Convention

The Sewel Convention governs how the UK Parliament legislates in areas of devolved power. In the Supreme Court’s words, it “was adopted as a means of establishing cooperative relationships between the UK Parliament and the devolved institutions.” The Scotland Act 2016 recognized the convention.

In January 2017, in the Miller case, the Supreme Court held that it could not enforce the convention. Judges, it said, “are neither the parents nor the guardians of political conventions; they are merely observers.”

The Lascelles Principles

The best-known statement of when the monarch may refuse a prime minister’s request to dissolve Parliament is a letter to The Times. It was published on 2 May 1950 and signed “Senex.” Its author was Sir Alan Lascelles, the King’s private secretary.

The letter set three conditions: the existing Parliament was “still vital, viable, and capable of doing its job,” a general election would harm the national economy, and the sovereign could find another prime minister able to govern with a working majority.

An Understanding

In Jane Austen’s Sense and Sensibility, Marianne Dashwood and John Willoughby behave as if they are engaged, and her mother assumes that they are. Her sister Elinor has doubts. “I want no proof of their affection,” she says, “but of their engagement I do.”

When Willoughby withdraws, he writes Marianne a cold letter asking for the return of “the lock of hair, which you so obligingly bestowed on me.” Marianne admits that there was never an engagement.

Walking

In cricket, a batter who knows he has hit the ball and been caught may walk, leaving the field without waiting for the umpire’s decision. The custom is often described as part of an unwritten code.

In the 2013 Ashes Test at Trent Bridge, England’s Stuart Broad was caught but did not walk, and the umpire, Aleem Dar, missed the dismissal. The writer Simon Rae found that walking was “only a vogue in English cricket” for about two decades after the Second World War.

The Rule of Six

In 2017, a study at University College London, commissioned by Privilege Home Insurance, described the unwritten rules of British queues. People were reluctant to join a queue of more than six people and would wait about six minutes before giving up. A gap of less than six inches between people could cause stress.

The study found that jumping the queue was seen as the most serious breach of queue etiquette.

Good Chaps

Much of the British constitution is not written down. It depends on what is known as the “good chap theory of government.” As Prospect magazine put it: “We have long assumed that those who rise to high office will be ‘good chaps,’ who understand the rules and choose to observe them.”