Abstract:
This paper reconciles the interpretative approach to the implication of terms in fact with the gap-filling, rule-based approach. It argues that the implication of terms in fact can properly be understood as an exercise in determining what a contractual instrument must mean, but it is necessary to ask why a contract must mean that an unarticulated solution is to be applied to resolve a particular problem. Answering that question affirms core elements of the traditional, rule-based approach to the implication of terms, but helps us to refine that approach, pointing towards a formulation that is both more precise and more comprehensive. The foundations of implied terms are logic (the implication is a logical inference from the language of the express terms), efficacy (a particular term is needed to make the contract work and represents a singularly apt solution to the problem in question) and purpose (a particular term is needed to prevent a contractual purpose from being defeated and represents a singularly apt solution to the problem in question).
Robertson, Andrew, The Foundations of Implied Terms: Logic, Efficacy and Purpose (December 15, 2016). S Degeling, J Edelman and J Goudkamp (eds), Contract in Commercial Law (Sydney, LawBook Co, 2016).
First posted 2016-12-17 07:34:20
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