Also known as: express term · express contractual terms
Written by attorneys · grounded in primary & secondary sources — see below
The explicit provisions of an agreement or governing instrument to which parties have manifested assent on particular matters. These provisions receive priority in interpretation and control over course of performance, course of dealing, and usage of trade when the two cannot reasonably be reconciled.
Elena Estrada named her spouse as the sole beneficiary of her revocable trust. After their divorce, Elena died without changing the trust. Her children claimed the spouse's interest was revoked by operation of law. The court examined the trust document and found an express clause stating that divorce would not affect any beneficiary designation. Because the clause was present, the spouse retained the interest.
Empire Logistics contracted with Eastern Electric to deliver components. The written agreement required arrival within a two-hour window. Over time Eastern accepted later deliveries without objection. When a dispute arose, Empire pointed to the written schedule. The court gave the written schedule controlling weight over the later pattern of conduct.
Select any source to read its text and confirm it supports the definition.
Everest Holdings sold equipment to Edgewater Capital under a contract stating payment was due within thirty days of delivery. The parties had previously allowed sixty-day payment in other deals. When Edgewater tendered payment at sixty days, Everest rejected it. The court held the thirty-day term controlled because it could not be reconciled with the prior practice.
A political group spent funds on advertisements that explicitly called for the election of a named candidate. Regulators sought to treat the spending as a contribution subject to limits. The group argued the ads fell outside the statute because they did not use the precise advocacy language. The court applied the statute only to communications containing express advocacy language.
Congress created a national bank under its enumerated powers plus the Necessary and Proper Clause. A state challenged the bank as beyond the Constitution's express grants. The Court examined the text of the enumerated powers and the clause itself. It concluded the clause supplied authority even though incorporation was not listed in express terms.
A military order barred persons of Japanese ancestry from designated zones. The order contained an express exception for individuals already inside an assembly center. A defendant argued the exception did not apply because he had not yet reached the center. The Court read the order according to its explicit language and rejected the broader reading.
Express terms control when they cannot reasonably be reconciled with course of performance. Courts first attempt to construe the two as consistent. If consistency is impossible, the written provisions govern.
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A provision is an express term when it is part of the parties' manifested assent on a particular matter. Incorporation by reference in a signed document, for example, makes listed deliverables express terms.
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Yes. Under the UPC, divorce revokes spousal beneficiary designations unless the governing instrument contains express terms providing otherwise. A clause stating divorce will not affect designations preserves the interest.
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Express terms prevail when inconsistency cannot be avoided. The Restatement and UCC both rank express terms highest in the hierarchy of interpretive sources.
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…sets out a deed executed by the Coal Company in 1878, under which the plaintiffs claim. The deed conveys the surface, but in express terms reserves the right to remove all the coal under the same, and the grantee takes the premises with the risk, and waives all claim for damages that may arise from mining out the coal. But the…