THE RELATIONSHIP BETWEEN THE DIFFERENT TYPES OF TERMS IMPLIED INTO CONTRACTS* (PART I)

Abstract

This contribution questions the widely held view that tacit terms and ex lege terms should be kept strictly apart as two separate categories of terms implied into contracts. It also considers the interrelationship between the different types of ex lege terms or rules governing the consequences of a contract, namely naturalia and the general residual rules of contract law, as well as ad hoc residual rules, which some writers have argued should be recognised. The writer concludes that the borders between all these different types of implied terms or provisions governing the consequences of a contract (including tacit terms) are necessarily fluid in a number of respects. In the light of this, and of criticism of our courts’ present approach to tacit terms, two alternative approaches to the implication of terms into a contract to provide for a contractual gap are considered in the second part of the article. Finally, practical suggestions are made for the treatment of contractual gaps.