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
Date Written: August 11, 2017
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: Suggested Citation