Ignoring the Parties' Silence: the Controversial Borders of Implied Terms
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Carlo Marchetti
Abstract
One of the most controversial issue of contemporary contract law is the role to be recognized to courts in the construction of the contracts’ content. Several recent European soft law codes tend to deal with contracts’ construction by means of the English doctrine of implied terms, a doctrine which in fact seems to become more and more popular also in civil law systems. The article first of all focuses on what appears to be the real underlying issue of contracts’ construction: the overall impression is that it is not quite a question of mimicking the parties’ presumed intention, but rather to decide on a certain risk allocation. Attention is then drawn to the possible factual circumstances in which courts seem to be more likely to imply terms. It will be noted that on the one hand, courts frequently imply terms in case of significant bargain power disproportion; courts, on the other hand, seem not to limit their possible intervention to these cases. The article will then make reference to some developments of contracts’ construction doctrines within the Italian and the English jurisprudence. In this regard, it will focus on the tests that courts declare to apply when implying terms, with the purpose of verifying the correspondence between what it is stated at the theoretical level and what it is actually observed at the practical one.
©2012 Walter de Gruyter GmbH & Co. KG, Berlin/Boston
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- Ten Years After Bankovic
- The Quest to Find a Law Applicable to Contracts in the European Union - A Summary of Fragmented Provisions
- Ignoring the Parties' Silence: the Controversial Borders of Implied Terms
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Articles in the same Issue
- Advances Article
- Ten Years After Bankovic
- The Quest to Find a Law Applicable to Contracts in the European Union - A Summary of Fragmented Provisions
- Ignoring the Parties' Silence: the Controversial Borders of Implied Terms
- Topics Article
- Art, Finance and the Third Sector
- Treatment of Recalcitrant Wife in Islamic Law: The Need for a Purposive Juridical Construct
- Naked Women And IAP Case Law: A Defense Against The Inappropriate Use Of Women In Italian Commercial Advertising
- El Concepto de Constitución y la Incomodidad Constitucional en Chile
- The Red Terror and a State of Uncertainty: United Nations' Role in the Indian Maoist Struggle
- Do the Right Thing (for your duty of competency): Some Ethical and Practical Thoughts on "Notarization" in International Transactions
