Art 6:102: Implied Terms

Commentaries on European Contract Laws, N. Jansen & R. Zimmermann eds.,Oxford, Oxford University Press, 2017

13 Pages Posted: 5 Oct 2018

See all articles by Helge Dedek

Helge Dedek

McGill University - Faculty of Law

Date Written: August 11, 2017

Abstract

When a court determines the scope and content of the normative relationship between contracting parties, it draws on a range of sources: the communications of the parties to the agreement, rules and principles of mandatory law (eg ‘public policy’, ‘illegality’), default rules, and a body of procedural rules and substantive standards that govern the ‘construction’ of the agreement. The process of ‘construction’ is not necessarily limited to a hermeneutical elucidation, ie the exegesis of the communications. Across European legal traditions, doctrinal means have developed that serve the purpose of adding provisions to agreements regarding situations the parties are deemed not to have addressed in their agreement, thus diagnosing ‘gaps’ or ‘lacunae’ in the contract. Art 6:102 of the PECL presents a compromise: regarding the substantive principles guiding the implication of terms, the PECL attempts to combine the common law concept of implying terms with substantive civilian standards.

Keywords: Terms, implied terms, interpretation, gap-filling, contract

JEL Classification: K10, K12

Suggested Citation

Dedek, Helge, Art 6:102: Implied Terms (August 11, 2017). Commentaries on European Contract Laws, N. Jansen & R. Zimmermann eds.,Oxford, Oxford University Press, 2017. Available at SSRN: https://ssrn.com/abstract=3247953

Helge Dedek (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

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