Jump to ContentJump to Main Navigation
Good Faith and Fault in Contract Law$
Users without a subscription are not able to see the full content.

Jack Beatson and Daniel Friedman

Print publication date: 1997

Print ISBN-13: 9780198265788

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198265788.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 02 December 2020

The Implied Terms of Contracts: Of ‘Default Rules’ and ‘Situation-Sense’ 1

The Implied Terms of Contracts: Of ‘Default Rules’ and ‘Situation-Sense’ 1

Chapter:
(p.191) 8 The Implied Terms of Contracts: Of ‘Default Rules’ and ‘Situation-Sense’1
Source:
Good Faith and Fault in Contract Law
Author(s):

Todd D Rakoff

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198265788.003.0008

This chapter addresses the question of how courts should deal with the process of gap filling by what are variously called ‘background terms’, ‘default rules’, or ‘implied terms’. The issue may arise in standard situations such as landlord and tenant, seller and buyer, or employer and employee, or in more individual or ‘one-off’ contracts in which there is a gap in the terms. The chapter is concerned with the first of these and discusses the difficulties and abstractness of a number of approaches, including ‘fairness’, ‘a common sense notion of implied consent’, a ‘hypothetical bargain’ test, and an efficient risk-allocation test. It proposes a ‘situation sense’ approach, which depends on a considerably more explicit, tight, and structured model of the transactional situation at issue in its societal context.

Keywords:   contract law, gap filling, background terms, default rules, fairness, implied consent

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .