Hutton v Warren (1836) 1 M & W 466
Whether custom could become an implied term of a lease where the lease is silent
Facts
Hutton was the tenant farmer of land owned by Warren. Warren gave Hutton notice to quit and insisted he continue to cultivate the land throughout the notice period. Hutton continued to farm the land during the last year of the tenancy expending his own labour and purchasing seed and manure for use on the land. On quitting the farm, Hutton sought a reasonable payment for the labour and expenditure bestowed on the farm, and Warren refused to pay.
Issues
Hutton contended it was customary upon the expiry of farming tenancies that the landlord should pay the out-going tenant farmer a reasonable sum for the cost of tillage, sowing and cultivating. He argued he had bestowed considerable labour and expense during the last year of the tenancy and on termination of the lease, he was prevented from enjoying the crops arising from his labour and, therefore, sought recompense as calculated by an independent land valuer. Warren argued the original lease contained no such term regarding any provision for an out-going tenant and if the lease was silent, there was no obligation to pay. Warren disputed there was any such custom in place and, even if there was, it had not been incorporated into the contract because the lease was silent on the matter.
Decision/Outcome
Hutton was successful in his claim. The custom was by implication imported into the lease. Where a commercial contract is silent, extrinsic evidence of customary practice and usage is admissible and can be incorporated into the agreement. It was, therefore, an implied term of the lease that Hutton should recover a fair and reasonable price for the seeds and labour he bestowed on the land.
Updated 19 March 2026
This article accurately summarises the facts, issues, and outcome of Hutton v Warren (1836) 1 M & W 466, a foundational case on the incorporation of custom and usage as implied terms into commercial contracts, including leases. The legal principle it establishes — that where a contract is silent, evidence of established custom and trade usage is admissible and may be imported into the agreement by implication — remains good law and continues to be cited in English contract and landlord and tenant law. The case is still regularly referenced in academic texts and by courts when considering implied terms arising from custom. There have been no statutory or judicial developments that overrule or substantially qualify the core principle as described. Readers should note, however, that the broader law of implied terms in contracts has been significantly refined since 1836, particularly by the Supreme Court in Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2015] UKSC 72, which clarified the tests for implying terms in fact (necessity and obviousness). Custom-based implied terms of the kind in Hutton v Warren are now understood as a distinct category — implied terms in law by virtue of established usage — and courts will scrutinise whether a custom is certain, notorious, and reasonable before giving it effect. The article does not address these nuances, but the core holding it describes remains accurate.
