The unexpressed terms of a contract Online publication date: Sat, 20-Sep-2014
by Steve Cornelius
International Journal of Private Law (IJPL), Vol. 5, No. 3, 2012
Abstract: When parties conclude a written contract, there is much which inevitably remains unsaid. Language is imprecise, with the result that the parties often express themselves in terms that are less than clear. It is also impossible to foresee all possible eventualities at the time when a contract is concluded. As a result, the laws in most jurisdictions have recognised that the express terms of a contract must be supplemented with unexpressed terms. The nature and extent of the terms vary greatly. In most Common law jurisdictions, courts have only a limited discretion to imply terms in a contract. These terms can be incidental terms which the law imports into all contracts of a particular kind. Or they can be based on the assumed or actual intention of the parties. In Civil law jurisdictions, complimentary interpretation is largely based on the significance of good faith in the law of contract and courts have a much wider discretion to compliment the terms of a contract to ensure a fair and effective contract.
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