contract implied in fact

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A contract implied in fact consists of obligations arising from a mutual agreement expressed not through words but implied through actions. To support a contract implied in fact, facts and circumstances surrounding the actions must show a mutual intent to contract. Contracts of this sort are legally enforceable and are true contracts, meaning they can supersede or modify written contracts on the same topic. 

To establish the existence of an implied in fact contract, it is necessary to show:

  • An unambiguous offer, 
  • Unambiguous acceptance, 
  • Mutual intent to be bound, and
  • Consideration

These four elements are the same for both express contracts and implied contracts. The difference between the two is that an implied contract does not require any of the above elements to be established through oral or written words. 

  • For example, if Dan asks for a scoop of ice cream at an ice cream parlor and the store-hand gives Dan the ice cream, a contract implied in fact exists. 
    • Because the interaction took place in a location where custom dictates money is exchanged for ice cream, the circumstances indicate the intent to form a contract. 

In contrast to a contract implied in fact is a contract implied in law, which is where a party does not intend to create a contract, but the court concludes they should be bound by one anyway. 

[Last updated in July of 2022 by the Wex Definitions Team]