Express, Implied and Tacit Contracts under Section 9 of the Indian Contract Act, 1872
Contracts can be formed in different ways. Sometimes the parties clearly state their agreement in words, while in other situations their conduct itself shows that they intended to enter into a contractual relationship. Section 9 of the Indian Contract Act, 1872 provides the statutory basis for distinguishing between express and implied promises. The distinction is mainly concerned with how the parties communicate their agreement. Whether an express or implied arrangement is ultimately enforceable depends upon the other requirements of contract law.
What Does Section 9 Say?
Section 9 provides that when a proposal or acceptance is made in words, the promise is express. When it is made otherwise than in words, the promise is implied.
The provision therefore creates two statutory categories:
- Express promise: communicated through words, whether spoken or written.
- Implied promise: inferred from conduct rather than words.
The Act technically classifies promises, rather than separately defining “express contracts” and “implied contracts.” These expressions are commonly used to describe contracts formed through express or implied promises.
Express Contract
An express contract is formed where the parties communicate the terms of their agreement through words. The communication may be oral or written. For example, A tells B, “I will sell my motorcycle to you for ₹80,000,” and B replies, “I agree.” The proposal and acceptance have both been communicated through words, making the promises express. An express contract does not necessarily require a written document. Section 10 itself recognises that particular laws may impose additional requirements relating to writing, witnesses or registration, but the general distinction under Section 9 is between communication through words and otherwise than through words.
Implied Contract
An implied contract arises where the parties’ conduct indicates an agreement even though the relevant terms have not been expressly communicated in words. A common example is travelling by public transport. A passenger boards a bus operated as a fare-paying service and pays or becomes liable to pay the applicable fare. The contractual relationship is inferred from the conduct of both parties rather than from a conversation setting out the terms. Section 8 supports this principle by recognising acceptance through performance of the conditions of a proposal or through acceptance of consideration offered with the proposal. Section 3 also recognises that communication may occur through acts or omissions having the effect of communicating the relevant intention.
The important point is that an implied contract is not an informal or lesser form of contract. Once the necessary requirements for enforceability are satisfied, its legal effect does not depend upon whether the agreement was spoken or inferred from conduct.
Express vs Implied Contract
| Basis | Express Contract | Implied Contract |
|---|---|---|
| Formation | Through words | Through conduct or circumstances |
| Communication | Oral or written | Inferred from acts or conduct |
| Example | “I will sell you my phone for ₹30,000.” | Boarding a bus and paying the fare |
| Section 9 | Promise made in words | Promise made otherwise than in words |
| Proof | Usually established through the words used | Usually established through surrounding conduct |
The essential distinction is therefore the manner in which the promise is communicated, not the legal strength of the resulting contract.
Is Silence an Implied Acceptance?
Silence by itself does not ordinarily establish acceptance. The fact that a person does not reject an offer does not automatically mean that they have accepted it. However, conduct accompanying silence may demonstrate acceptance in appropriate circumstances. Section 8, for example, recognises acceptance through performance of the conditions of a proposal. Therefore, the relevant question is not simply whether the person remained silent, but whether their conduct objectively indicates acceptance.
This distinction prevents the incorrect assumption that silence can always create an implied contract.
What Is a Tacit Contract?
The expression “tacit contract” is not defined in the Indian Contract Act. Section 9 uses the statutory expressions “express” and “implied” promises; it does not separately create a category called tacit contracts. In legal commentary, “tacit contract” is generally used for an agreement inferred from the parties’ conduct or circumstances without an express statement of the terms. It is therefore commonly treated as a form of implied contract rather than as an independent statutory category.
Because the term is used differently across textbooks and legal commentary, students should follow the terminology adopted by their prescribed textbook or university syllabus when answering an examination question.
Implied Contract and Quasi-Contract Are Not the Same
One of the most important distinctions is between an implied contract and a quasi-contract.
An implied contract is based on conduct from which the law infers an actual agreement between the parties. A quasi-contract is different: the law imposes an obligation even though the parties have not actually entered into a contract. The Indian Contract Act deals with these obligations in Sections 68–72, under the chapter concerning “certain relations resembling those created by contract.” Section 70, for example, can require compensation where a person lawfully does something for another, without intending to act gratuitously, and the other person enjoys the benefit.
In State of West Bengal v. B.K. Mondal & Sons, AIR 1962 SC 779, the Supreme Court explained the nature of Section 70 and recognised that the provision does not depend upon the existence of a subsisting contract. Thus, implied contract = agreement inferred from conduct; quasi-contract = obligation imposed by law.
Implied Contract and Implied Terms Are Different
An implied contract concerns the formation of the contractual relationship. Implied terms, on the other hand, concern the content of a contract that already exists. Courts do not automatically add terms merely because they appear reasonable. In Nabha Power Ltd. v. Punjab State Power Corporation Ltd. (2018) 11 SCC 508, the Supreme Court discussed the strict conditions for implying a term and emphasised that express contractual terms remain the primary source for determining the parties’ agreement.
The distinction can therefore be stated simply: Implied contract: How was the contract formed? Implied term: What term, if any, forms part of an existing contract?
Example: Express, Implied and Quasi-Contract
Suppose A tells B, “I will repair your laptop for ₹2,000,” and B agrees. This is an express contract because the agreement is communicated through words.
If B instead leaves the laptop with A for repair after seeing A’s clearly displayed repair service and pricing, and A proceeds with the repair, the contractual relationship may be inferred from their conduct. This is an implied contract.
If A provides a lawful service to B without an intention to do it gratuitously, and B knowingly accepts and enjoys the benefit in circumstances satisfying Section 70, the resulting obligation may arise from quasi-contract, not from an implied agreement.
Common Examination Mistakes
The first mistake is saying that Section 9 defines express and implied contracts. Technically, Section 9 classifies promises as express or implied.
The second is treating an oral contract as implied. An oral contract is generally express because the parties have communicated their promises through words. The third is treating a tacit contract as a separately defined statutory category. “Tacit contract” is not defined in Section 9 and is generally used as a form of implied contractual relationship. The fourth is confusing an implied contract with a quasi-contract. An implied contract arises from the parties’ conduct, whereas a quasi-contractual obligation is imposed by law.
Frequently Asked Questions
Is an oral contract express or implied?
An oral contract is generally express because its terms are communicated through spoken words.
Is an implied contract legally enforceable?
Yes. An implied contract can be legally enforceable if the requirements necessary for a valid contract are satisfied.
Is a tacit contract defined under Section 9?
No. Section 9 refers to express and implied promises. “Tacit contract” is a term used in legal commentary to describe certain agreements inferred from conduct.
Is silence an acceptance?
Silence alone does not ordinarily amount to acceptance. However, conduct accompanying silence may establish acceptance where it objectively demonstrates assent.
What is the difference between an implied contract and a quasi-contract?
An implied contract arises from conduct indicating an actual agreement. A quasi-contractual obligation is imposed by law even though there is no actual agreement between the parties.
Conclusion
Section 9 of the Indian Contract Act distinguishes promises according to the manner in which they are communicated. Express promises are made through words, while implied promises arise otherwise than through words.
Express and implied contracts therefore differ primarily in their method of formation and proof. A tacit contract is not a separately defined statutory category, while a quasi-contract is fundamentally different because its obligation is imposed by law rather than inferred from an actual agreement.
References
- The Indian Contract Act, 1872, Sections 3, 8, 9, 10 and 68–72. India Code.
- State of West Bengal v. B.K. Mondal & Sons, AIR 1962 SC 779.
- Nabha Power Ltd. v. Punjab State Power Corporation Ltd., (2018) 11 SCC 508.
- Brogden v. Metropolitan Railway Co., (1877) 2 App Cas 666 (HL).
- Felthouse v. Bindley, (1862) 11 CB (NS) 869.
- The Moorcock, (1889) 14 PD 64 (CA).
