Ignoring the Parties' Silence: the Controversial Borders of Implied Terms

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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.