Dictionary meaning of 'tacit' is: Implied by or inferred from actions or
statements; so both are same.
If we really try to dig dipper then 'tacit' also could mean something which is
not spoken but understood from non-verbal communication. Non-verbal
communication includes, winking, sighs, tone and pitch and silence.
Eg: She indicated her tacit approval by smiling and winking.
In this extended sense, sometimes an implied contract could involve express
verbal communication, however no such express communication is required in most
cases of a tacit contract.
in the above, the verbal communication, which is refereed to, is not happening
between the offerer and offeree; but is happening between one of these and a
third party:
For example:
while The conductor of a bus is telling X- a general inquirer- that the fare is
Rs 10 to Railway station, Y- an intending passenger- hears this and
boards the bus to the same destination. Here though there is no direct
offer by the conductor to this particular passenger yet from what he overheard
he can take that as an implied offer and when he boards the bus there is an
implied acceptance from him. So this would be a case of an implied contract.
As we do not see any subtlety in boarding a bus we may not classify this as a
tacit contract.
To avoid misunderstanding:
As per section 9 of Indian Contract Act- 1872:
Promises, express and implied are defined as following:
In so far as the proposal or acceptance of any promise is made in words, the
promise is said to be express. In so far as such proposal or acceptance is made
otherwise than in words, the promise is said to be implied.
So, where the offer or acceptance is not made in words- written or verbal- it
is a case of implied promise. By extension, existence of an implied promise
would give rise to an implied contract.
Now if we consider Implied contracts to be a set then tacit
contracts would be a subset within this set. So essentially tacit contracts
would also be implied contracts.
The subtlety in the offer or the acceptance would make it a tacit contract.
The word 'Tacit' finds no mention anywhere in the Act (Indian Contract Act-
1872).
Here's an objective
example of the importance of appropriate drafting of contracts:
Dr Das is a reputed
consultant who facilitates Hospitals getting NABH- National Accreditation Board
for Hospitals- certificates, which helps them optimize their revenue. As this
indicates quality now government hospitals are also interested to get these
certifications.
While accepting such
assignments Dr Das gets a standardized agreement signed. Here’s one of the
clauses of such an agreement.
"The contract is
valid for a year or till the certificate is received (whichever is
earlier)."
Missing out the clause in
the parentheses (brackets), while accepting a contract from the state
government cost very heavily to Dr XYZ Das.
The state government people
were innocent of any firm timeline. But due to the open-endedness of the
contractual terms Dr Das was bound to provide them services, while the
inordinate delays were entirely attributable to the inefficiency and gross
callousness of Government officials, for ages and the fees was fixed.
(This Draft would be
further populated with similar real life examples to be of benefit to
professionals practicing the trade of Drafting etc.)
