The role of implicit contract terms as a determinant of contractual consequences

[摘要] ENGLISH ABSTRACT:It is clear that the classical concept of contract suffers from weaknesses because it takestoo little account of social and economic changes that have occurred in our highlycompetitive global climate. More particularly, it fails to acknowledge implicitdimensions of contract.The classical contract theory was designed for transactions rather than to regulaterelations. In view of the relational contract theory, contracts are agreements, oftendeveloped gradually, over a period of time and last over a period of time, perhapsindefinitely.As illustrated, with a discussion of the various theories attempting to qualify the classicallaw, the development of the relational contract theory and the need for implicitdimensions is in line with changes in business, market transactions and the economic andsocial environment of today.The relational contract is gradual and emphasises the relationship between the parties.Focus is placed on their understandings, party practices, customs and expectations asopposed to formal doctrines and principles.Characteristically, relational contracts are often incomplete in their specifications, thusleaving room for the creation of expectations and understandings inter partes. Theseexpectations and understandings along with co-operation, rationality and trust are theimplicit dimensions, which reflect the shared interest the parties have in their transaction.The ways in which these implicit dimensions can be recognised, developed and applied tocontracts, particularly in the South African context is considered in light of our law'streatment of the implication of terms into contracts. It was found that considerations ofreasonable expectations and policy do playa role in our law, albeit not to such an extentas to meet the demands of the relational contract theory and the recognition of implicitdimensions. Existing contract principles are also evaluated in the light of the relational contract andimplicit dimensions.It is not suggested that classical contract law doctrines are to be dispensed with but that ashift of focus should occur, from the traditional focus on the ''paper'' deal to focusing onthe ''real'' deal, between the parties.It is concluded that a principle of good faith would be a suitable starting point to givecognisance to implicit dimensions and to regulate relational contracts. In recognising aprinciple of good faith, the courts will be able to better respond to the expectations of theparties. A principle of good faith is recommended as being advantageous towardsdeveloping a pre-contractual duty of disclosure and encouraging more co-operativethinking and dealing in both legal doctrine and contracting practice.

[发布机构] Stellenbosch University