The Unexpressed Terms of a Contract

Steve Cornelius
Department of Private Law
University of Pretoria, South Africa
[email protected]

Abstract. When parties conclude a written contract, there is much

which inevitably remains unsaid. Language is imprecise, with the result
that the parties often express themselves in terms that are less than clear.
It is also impossible to foresee all possible eventualities at the time when
a contract is concluded. As a result, the laws in most jurisdictions have
recognised that the express terms of a contract must be supplemented with
unexpressed terms. The nature and extent of the terms vary greatly. In
most Common law jurisdictions, courts have only a limited discretion to
imply terms in a contract. These terms can be incidental terms which the
law imports into all contracts of a particular kind. Or they can be based
on the assumed or actual intention of the parties. In Civil law
jurisdictions, complimentary interpretation is largely based on the
significance of good faith in the law of contract and courts have a much
wider discretion to compliment the terms of a contract to ensure a fair and
effective contract.

1. Introduction
It is an accepted principle of interpretation that a term of a contract must be read in
its context and not in isolation. In the first instance, this means that a term must be
interpreted in the light of all the other terms of the contract, so that the meaning of
each word is influenced by the text as a whole.1 An interpreter, therefore, cannot
begin to ascribe any final meaning to a term, unless he or she knows the full extent
of the contract concerned. It is consequently necessary to consider the various kinds
of terms that could make up a contract.
When parties conclude a written contract much inevitably remains unsaid. It
would be impossible for parties to contemplate all possible eventualities and provide
for them in their contract. As a result, the law has long since recognised that the ex-
press terms of a written contract can be supplemented with other, unexpressed, terms.

2. Historical Development

2.1 Civil Law

Initially, the only contracts recognized under Roman law were strict formalistic
transactions which derived their validity and enforceability from compliance with
formalistic rituals and the expression of set formularies. If the parties performed the
rituals and expressed the formularies, it made no difference whether or not there was

1 Van Warmelo, P. “Die Uitleg van Kontrakte” 1960 South African L.J. 69 72, 73.
1
an actual meeting of minds – they were contractually bound. The terms of these
early contracts were also determined by law and had fixed meanings from which the
parties could not deviate.2 The formal words merely served to identify the nature of
the transaction, while the actual terms of the contract were imposed on the parties by
operation of law.3 Although contracts eventually evolved into less formal
transactions, the principle that the law could impose certain terms on the parties was
received into mediaeval European laws. 4
Roman law initially left little room for terms that were freely negotiated and
expressly agreed on by the parties and there was consequently little need for
interpretation. It was only with the eventual recognition of less formal contracts
based on consensus that the interpretation of contracts in the true sense of the word
came to the fore and even in the case of strict, formal transactions, the intention of
the parties began to exert its influence on the meaning of the terms of their contract. 5
As a result, the law began to recognise not only terms to which the parties expressly
agreed, but also tacit terms relating to matters on which the parties were clearly
unanimous, but failed to express. The growing significance of consensus was
received into mediaeval European laws6 and developed to such an extent that parties
could eventually conclude entire contracts tacitly through their conduct.7

2.2 Common Law

In early English law, consensus as the basis for contractual liability initially also
received little attention. Before the eighteenth century a party merely had to produce
a deed under seal or demonstrate a quid pro quo (consideration) to prove that a
contract had been concluded.8 In the case of written contracts, much significance
was attached to the seal affixed thereto and the written instrument came to be seen as
the actual embodiment of the contract, rather than a mere record of the transaction
between the parties. Consequently emphasis was placed on the text contained in the
deed under seal and the literal meaning of the words took centre stage.9 As a result,
the deed was seen as a self-contained instrument and there was no room to add terms
not expressed in the deed.
The significance of consideration and the recognition of informal contracts
based on consensus eventually led to the recognition of contracts concluded tacitly
through the conduct of the parties without any written or verbal expression of
agreement.10 This in turn led to the recognition of tacit terms relating to matters

2 Tab. 6.1; Inst 3.15.1. See also Buckland, A. Textbook of Roman Law from Augustus to Justinian
(3rd ed) (1963) 412 et seq.
3 See e.g. D. 13.6.5.2; D. 18.1.35.4; D. 18.6.8; D. 21.1.1.1; D. 21.1.49; D. 21.2.39.
4 Van der Linden, J. Regtsgeleerd, Practicaal en Koopmans Handboek 1.14.4.5; Voet, J.
Commentarius ad Pandectas 17.2.12, 19.2.32, 21.1.1, 21.2.9; De Groot, H. Inleiding tot de
Hollandsche Rechtsgeleerdheyd 3.6.10.
5 See e.g. D. 2.14.1.3; D. 44.7.3.1; Paul Sententiae 1.1.1 – 2.
6 Voet 19.2.9, 23.2.42, 23.2.85; Van der Linden 1.14.4.1.
7 Van der Linden 1.14.4.6 – 9.
8 Glanvill Tractatus de Legibus et Consuetudinibus Regni Anglie Qui Glanvilla Vocatur 10.12;
Teeven, K.M. A History of the Anglo-American Common Law of Contract (1990) 188.
9 Wigmore, J.H. A Treatise on the Anglo-American System of Evidence in Trials at Common Law
Volume 9 (1940) (3rd ed) 83 - 84, 86.
10 Holdsworth, W.S. A History of English Law (1925) 4.2.3.3.1.
2
concerning which the parties were unanimous, but failed to express in their
contract.11
But the English courts did not stop at that. They recognised that unforeseen
circumstances often arise which the parties could not have provided for in their
contract. To prevent contracts from failing when unforeseen circumstances arise,
English courts came up with a creative solution to the problem. A term could then be
inferred in a contract based on that which reasonable parties would have agreed to if
they had contemplated the unforeseen circumstances.12 This development is
eventually summarised in Reigate v. Union Manufacturing Co. (Ramsbottom)13
where lord Scrutton explained that

[a] term can only be implied if it is necessary in the business sense to give
efficacy to the contract; that is, if it is such a term that it can confidently be said
that if at the time the contract was being negotiated someone had said to the
parties, 'What will happen in such a case', they would both have replied, 'Of
course, so and so will happen; we did not trouble to say that; it is too clear'.

This has become known as the "officious bystander test".

The position in English law was eventually summarised by Williams,14 where he
explained that there are three kinds of unexpressed terms that may in fitting
circumstances be implied in a contract:

1. Terms that the parties probably had in mind but did not trouble to express.
2. Terms that the parties, whether or not they actually had them in mind, would
probably have expressed if the question had been brought to their attention.
3. Terms that, whether or not the parties had them in mind or would have
expressed them if they had foreseen the difficulty, are implied by the court
because of the court's view of fairness or policy or in consequences of rules of
law.

2.3 Reflection

It seems then, that in both Civil law and Common law traditions, there was an
awareness that the written instrument was flawed and imprecise. There was a need
to address the fallibility of language and the inability of parties to express
themselves fully and in precise terms. And various legal systems came up with
remarkably similar solutions.

3. Modern Law

3.1 Common Law

11 Krell v. Henry 52 W.R. 246; Hamlyn & Co. v. Wood & Co. 7 T.L.R. 731; Iven v. Elwes 61 E.R.
810.
12 The Moorcock 37 W.R. 439; Lyttleton Times Co. Ltd. v. Warners Ltd. 23 T.L.R. 751; Midland
Ry. Co. v. London & North West Ry. Co. 15 W.R. 34.
13 [1918] 1 K.B. 592.
14 "Language and the law" 61 L.Q.R. 71 401.
3
The English law with regard to the implication of terms has been restated by the
courts repeatedly. In Equitable Life Assurance Society v Hyman15 Steyn LJ
explained that

a term can be implied by law in the sense of incidents annexed to particular

forms of contracts. Such standardised implied terms operate as general default
rules; ... If a term is to be implied it could ... [also] be a term implied from the
language ... in its particular commercial setting. Such implied terms operate as
ad hoc gap fillers. ... Such a term may be imputed to the parties: It is not
critically dependent on proof of an actual intention of the parties. The process
"is one of construction of the agreement as a whole in its commercial setting":
... This principle is sparingly and cautiously used and may never be employed
to imply a term in conflict with the express terms of the text. The legal test for
the implication of such a term is a standard of strict necessity.

More recently, in Attorney General of Belize and others v Belize Telecom Ltd and
another16 the Privy Council, per Hoffmann LJ, explained that

[t]he court has no power to improve upon the instrument which it is called
upon to construe, whether it be a contract, a statute or articles of association. It
cannot introduce terms to make it fairer or more reasonable. It is concerned
only to discover what the instrument means. However, that meaning is not
necessarily or always what the authors or parties to the document would have
intended. It is the meaning which the instrument would convey to a reasonable
person having all the background knowledge which would reasonably be
available to the audience to whom the instrument is addressed ... It is this
objective meaning which is conventionally called the intention of the parties, or
the intention of Parliament, or the intention of whatever person or body was or
is deemed to have been the author of the instrument.

The current consensus among judges seems to be that a term can be implied into a
contract in one of two instances only: Firstly, a term can be implied ex lege as a
general default rule which applies to all contracts of a particular form. Secondly, a
term can be implied on an ad hoc basis in a contract between particular parties if it is
strictly necessary to fill a gap in order to arrive at the objective meaning of the
contract.17
This also seems to be the predominant view amongst the authors of textbooks on
the interpretation of contracts. Austen-Baker18 distinguishes between terms implied
by statute, terms implied as a matter of law, terms implied from usage or custom and
terms implied in fact. The first three categories of terms are all incidental terms
which the law imports into any contract of a particular kind. The fourth kind
mentioned by Austen-Baker relate to terms derived from the assumed intention of

15 [2000] 3 All E.R. 961 (H.L.) 970.

16 [2009] 2 All E.R. 1127 (P.C.) 1132.
17 In addition to the cases already cited, see also McCarthy v. McCarthy & Stone Plc. [2006] 4 All
E.R. 1127 (Ch.); Hilton v. Barker Booth and Eastwood (a firm) [2005] 1 All E.R. 651 (H.L.);
Crest Nicholson Residential (South) Ltd. v. McAllister [2003] 1 All E.R. 46 (Ch.); Ashworth
Frazer Ltd. v. Gloucester City Council [2002] 1 All E.R. 377 (H.L.).
18 Austen-Baker, R. Implied Terms in English Contract Law (Cheltenham: Edward Elgar, 2011).
4
the parties which are implied if it is necessary to give business efficacy to the
contract.
However, in the recent case of Baker Tilly (a firm) v Makar19 Hughes LJ in the
Court of Appeal explained

that the contract contained [an] implied term, representing the common
unexpressed understanding of the parties ... [T]his ... cannot stand with the
existence of an entire contract. This, I am quite satisfied, was not an entire
contract.

It is significant that the court did not refer to the requirement of business efficacy or
any of the other tests usually applied in this regard. Instead, the court based its
finding solely on the actual unexpressed intention of the parties. As a result, it seems
that a third kind of unexpressed term, not inferred by law and not derived as a
necessity from the assumed intention of the parties, but derived from the actual
unexpressed intention of the parties, still survives in English law to rear its head
from time to time.
Salmond20 once explained21 that

implied terms of a contract, meaning thereby the terms devised and implied by
the law itself and imported into the contract as supplementary to the express
terms which have their origin in the actual intention of the parties, must be
distinguished from those terms inferred as a matter of fact to have been
actually, though tacitly, declared or indicated by the party or parties whose
declared will constitutes the contract. These latter terms may be described as
tacit terms. It is regrettable that the word implied is ambiguous and is
frequently applied not only to terms implied in law but also implied in fact, i.e.,
tacit terms.
... Indeed, a complete contract may be made by such conduct, as when a
purchaser takes a newspaper from a bookstall and thereby incurs an obligation
to pay for it. In such cases the contractual intention or will is considered to be
an actual fact inferable from the conduct of the persons concerned. Such cases,
therefore, do not differ in essence from those where the intention or will is
expressed in spoken or written words, for speaking and writing are themselves
merely particular forms of human conduct. In both kinds of case, the essential
thing is that there is considered to be in the minds of the parties an actual
intention or will manifested or declared by the parties by their overt acts,
whether those acts take the form of written or spoken words, or other conduct.
Both tacit and express terms are considered to represent the actual intention of
the parties. Implied terms, on the other hand, are introduced by the law in
default of the manifestation by the parties of any such actual intention ...

He further explained22 that

19 [2010] E.W.C.A. Civ. 1411.

20 Principles of the Law of Contracts (1945) (2nd ed).
21 36.
22 37 - 38.
5
 implied terms are of two kinds. One kind consists of those terms which are
read into a contract by reason of some general rule of law applicable to
contracts of that class. The other kind consists of terms which are read into the
contract not by virtue of any such general rule, but by way of interpretation of
the express terms of the individual contract.

In respect of the latter, Salmond explained 23 with reference24 to the case of The
Moorcock25 that

there will be read into every contract such implied terms as are derivable by
necessary implication from the express terms of that contract, read in the light
of the subject- matter and purpose of the contract and the circumstances in
which it is made. By necessary implication is not meant a necessary inference
of fact as to the actual intention of the parties. ... By necessary implication is
meant such an implication as is necessary to give efficacy to the contract by so
supplementing its express terms as to make it a workable and complete
agreement in such manner as the parties would presumably have themselves
adopted had the question been brought to their minds and been made the
subject of an express provision at the time when the contract was made. The
law attributes to parties by this process of interpretation the intention which as
reasonable men they must necessarily have formed and expressed on the
making of the contract if the matter had been called to their intention.

This approach is also generally followed in other jurisdictions with a Common

law tradition. In Byrne v Australian Airlines Ltd 26 the High Court of Australia
distinguishes between different kinds of terms that can be implied in a contract. The
court firstly refers to terms that can be implied into a contract in terms of the
officious bystander test.27 Secondly, there are terms that can be implied if it is
necessary to give business efficacy to a contract.28 However, the court questions
whether there is any distinction between these two kinds of terms.29 Thirdly, the
court refers to incidental terms which the law imports into contracts of a particular
kind irrespective of the parties' intention. 30 Lastly, a court can imply into a contract
a "'tacit term' to identify the latent unexpressed intentions of the parties".31
In Canadian Pacific Hotels Ltd v Bank of Montreal32 the Supreme Court of
Canada distinguished between terms that can be implied by law and are incidental to
a particular kind of contract, as opposed to terms that are necessary to give business
efficacy to a contract. A further distinction is made by the British Columbia Court of
Appeal in Petro-Canada v Disco Oil & Gas Ltd 33 where the court indicates that a
term can firstly be implied where it is necessary to give business efficacy to the

23 39 - 40.
24 40.
25 37 W.R. 439.
26 185 C.L.R. 410.
27 440.
28 441.
29 447.
30 447.
31 447. See also Shepherd v. Felt & Textiles of Australia Ltd. 45 C.L.R. 359 378.
32 77 N.R. 161.
33 96 B.C.L.R. (2d) 174.
6
contract and secondly, where the term implied represents the obvious, but
unexpressed, intention of the parties.
In the United States, the Supreme Court of Texas explained in Danciger Oil &
Refining Co of Texas v Powell34 that an implied term

must appear that it was so clearly within the contemplation of the parties that
they deemed it unnecessary to express it, and therefore omitted to do so, or it
must appear that it is necessary to infer such a covenant in order to effectuate
the full purpose of the contract as a whole as gathered from the written
instrument. ... However, covenants will be implied in fact when necessary to
give effect to the actual intention of the parties".35

In Grimes v Walsh & Watts Inc36 the Texas Court of Appeals refined the positition
somewhat when it explained that

a court can declare implied covenants to exist only where it appears such
covenants were clearly contemplated by the parties37 or were necessary to
effect the purpose of the contract.38

A similar approach is followed in most of the other US states.39

A seminal aspect of the implication of terms which is emphasised in all Common
law jurisdictions, is that courts only have a limited discretion to compliment the
terms of a contract with implied terms. Courts cannot imply terms into a contract
merely because it would be reasonable, fair or expedient. In addition, courts are
generally reluctant to interfere with the terms of a contract which parties had entered
into freely.
In South Africa, the law relating to the unexpressed terms of a contract is based
on English law.40 This means that South African courts also have only a limited
discretion to imply terms in a contract41 and only certain kinds of terms can be
implied if the requirements for the particular kind of term are satisfied. Term cannot
be implied on the basis of good faith, fairness or reasonableness. There are three
kinds of unexpressed terms that are recognised in the South African law of contract.
Firstly, there are implied terms. These terms are inferred ex lege in a contract,
despite the fact that the parties did not reach or would not have reached agreement
on the matters involved. These terms, often referred to as naturalia, are derived
from the common law, statute, precedent, custom or trade usage and are not

34 154 S.W. 2d 632.

35 635.
36 649 S.W. 2d 724.
37 See also Universal Health Services, Inc. v. Renaissance Women's Group, P.A. 121 S.W.3d 742.
38 See also WesternGeco, L.L.C. v. Input/Output, Inc., 246 S.W.3d 776.
39 See e.g. Percoff v. Solomon 67 So. 2d 31 (Alabama); Walgreen Arizona Drug Co. v. Plaza
Center Corp. 647 P. 2d 643 (Arizona); Kroger Co. v. Bonny Corp. 216 S.E. 2d 341 (Georgia);
Bobenal Investment Inc. v. Giant Super Markets Inc. 260 N.W. 2d 915 (Michigan); Tuttle v. W.T.
Grant Co. 171 N.Y.S. 2d 954 (New York); Mercury Investment Co. v. F.W. Woolworth Co. 706
P. 2d 523 (Oklahoma).
40 Minister van Landbou-Tegniese Dienste v. Scholtz 1971 3 S.A. 188 (A.); Alfred McAlpine &
Son (Pty.) Ltd. v. Transvaal Provincial Administration 1974 3 S.A. 506 (A.).
41 Seven Eleven Corporation of S.A. (Pty.) Ltd. v. Cancun Trading No. 150 C.C. [2005] 2 All S.A.
256 (S.C.A.).
7
dependent on the actual or presumed intention of the parties.42 They are duties
imposed by law.
Implied terms must be distinguished from tacit terms. But not all tacit terms are
alike. In Wilkins NO v Voges43 Nienaber JA explained that

[a] tacit term, one so self-evident as to go without saying, can be actual or

imputed. It is actual if both parties thought about a matter which is pertinent
but did not bother to declare their assent. It is imputed if they would have
assented about such a matter if only they had thought about it - which they did
not do because they overlooked a present fact or failed to anticipate a future
one.

Secondly, therefore, there are consensual tacit terms. These are terms relating to
matters concerning which the parties had actually reached agreement or with regard
to which the parties had some common expectation, but failed to express in writing
or speech. According to McEwan J 44 a tacit term "is found, if at all, in the
unexpressed common intention of the parties as determined from the surrounding
circumstances or any other proper source." Because tacit terms are derived from the
actual intention of the parties, the test to determine whether a tacit term can be read
into a contract is subjective. It is a question of fact decided by analysing the conduct
of the parties and other indicators of their actual states of mind.
Thirdly, there are imputed tacit terms. These are terms concerning matters which
the parties had not considered, but they would have agreed to the term concerned
had their attention been drawn thereto at the time when they concluded the contract.
Terms of this nature are based on the assumed intention of the parties. The officious
bystander test is applied to determine whether or not a term should be implied into a
contract. The classic formulation of this test remains the dictum of Scrutton LJ in
Reigate v Union Manufacturing Co (Ramsbottom) 45 (cited in the Alfred McAlpine46
and Seven Eleven47 cases):

if at the time the contract was being negotiated someone had said to the parties,
'What will happen in such a case', they would both have replied, 'Of course, so
and so will happen; we did not trouble to say that; it is too clear'.

The test to determine whether an implied term can be inferred in a contract, is

objective - what would the parties, as reasonable people have agreed to?48 Inferring
an implied term into a contract is based on a legal fiction and is consequently a
question of law.
The distinction between consensual and imputed tacit terms was eloquently
explained by Wunsh J in Bezuidenhout v Otto.49

42 A.A. Farm Sales (Pty.) Ltd. (t./a. A.A. Farms) v. Kirkaldy 1980 1 S.A. 13 (A.) 17C.
43 1994 (3) S.A. 130 (A.).
44 Cardoso v. Tuckers Land and Development Corporation (Pty.) Ltd. 1981 3 S.A. 54 (W.) 61G.
45 [1918] 1 K.B. 592.
46 533B.
47 266A.
48 Trollope & Colls v N.W.M.R. Hospital Board [1973] 1 W.L.R. 601 613C.
49 1996 3 S.A. 339 (W.) 344A - E.
8
 What is not always appreciated in some of the books is the difference between
the following:
1. A tacit term, which is sometimes called an implied term
In earlier cases also described as an implied term, which a court will find to
exist when:
(a) it is necessary to import it to give business efficacy to the contract; or
(b) the parties did not, in fact, apply their minds to it, but if an officious
bystander had asked them if it should have been in the contract, they
would unhesitatingly have responded in the affirmative. ...
2. A tacit term proper
That is to say one which the parties actually agreed upon, but did not articulate;
a term they did agree to, as distinguished from one they must have agreed to.
The inquiry is whether on the basis of the proved facts and circumstances it
was probable that a tacit agreement had been reached."

Consensual tacit terms are based on fact - what the parties had actually intended
with regard to a matter which they had considered, but failed to express. Imputed
tacit terms are based on fiction - what the parties would have agreed to if they had
considered the matter at the time when the contract was concluded.

3.2 Civil Law

In Germany, implication of terms is known as ergänzende Vertragsauslegung or

complimentary contract interpretation. Complimentary interpretation is applied
whenever the terms of a contract are insufficient because the parties inadvertently
failed to express their intention with sufficient clarity. On the grounds of good faith,
a German court may then imply a term into the contract if that term ties in with the
other terms of the contract, as well as the purpose and scope of the contract. 50 In
determining to what extent a gap in the terms of a contract can be complimented a
court must consider the other terms of the contract and any other circumstances
which could give some indication of the parties' intention. A court may not make
any material alteration to a contract or contradict the clear intention of the parties. 51
Complimentary interpretation can be based on any one of three grounds: wirklicher
Parteiwille52 or the actual intention of the parties, hypothetischen Parteiwillen53 or
the hypothetical intention of the parties and vernünftige Regelung duch den Richter54
or fair determination by the judge in accordance with the relevant codified
provisions55 that relate to good faith.
It would seem that complimentary interpretation in German law is similar to the
implication of terms in English law. Complimentary interpretation based on
wirklicher Parteiwille appears to be the same as implication of terms based on the
actual unexpressed intention of the parties. The implication of so-called Moorcock
terms in English law seems to accord with complimentary interpretation based on
hypothetische Parteiwille in German law, while vernünftige Regelung seems to be
the same as incidental terms implied by law as default rules.

50 B.G.H. Urt. v. 20.7.2005 – VIII Z.R. 397/03.

51 B.G.H. Urt. v. 13.12.2006 – VIII Z.R. 25/06; B.G.H. Urt. v. 10.11.1999 – I. Z.R. 183/97.
52 B.A.G. Urt. v. 22.4.2009 – 7 A.Z.R. 768/07.
53 B.G.H. Urt. v. 20.7.2005 – VIII Z.R. 397/03.
54 B.G.H. Urt. v. 24.1.2008 – III Z.R. 79/07.
55 Such as § 157 B.G.B.
9
 However, this apparent similarity is superficial since the underlying law of
contract in English law differs in some material aspects from the German law of
contract. In the Anglo-American tradition, contracts are drafted meticulously to
express the intention of the parties in complete terms. In continental legal systems,
contracts are drafted against the backdrop of the applicable civil and commercial
codes. These contracts are usually shorter and simpler than contracts in the Anglo-
American tradition.56 In addition, the principles of good faith are fundamental to the
law of contract in the civilian tradition so that the implication of terms is of much
greater significance than in the Anglo-American tradition.
German courts enjoy much more latitude in respect of complimentary
interpretation and unexpressed terms can be implied in a contract merely because it
would be equitable or reasonable to do so.57
This approach is not limited to Germany. Schelhaas 58 explains that there is a
fine line in Dutch law between complementing and interpreting the terms of a
contract and the two often overlap. Article 6:248.1 BW provides that an agreement
not only has the legal consequences that the parties agreed on, but also those
consequences that stem from the nature of the contract, by law, custom or the
demands of reasonableness and fairness. 59

4. Conclusion

While it is clear that most jurisdictions recognize that written contracts are not in
themselves adequate to express the intention of the parties, the extent to which
courts are allowed to delve into the contract and add terms which the parties have
not expressly included, varies substantially.
An analysis of jurisdictions where the law relating to the unexpressed terms of a
contract is based on English Common law reveals that courts have only a limited
discretion to imply terms into a contract. Only particular kinds of implied terms are
recognised and the requirements for each kind must be clearly satisfied before a
court will intervene.
On the other hand, the important role played by good faith and reasonableness in
the civil codes of most Civil law jurisdictions, means that courts have a much wider
discretion to insert unexpressed terms in a contract to ensure an outcome which is
fair to both parties.

56 Wessels, T. and Van Wechem, T.H.M. Contracteren in de Internationale Praktijk III (1997)
325.
57 In accordance with §157 B.G.B.
58 "De entire agreement clause in het Europese contractenrecht" in Busch, D. and Schelhaas, H.N.
Vergelijkender Wijs: Opstellen Aangeboden aan Prof Mr Ewoud H Hondius (2007) 288 296.
59 § 6:248.1 B.W. provides: "Een overeenkomst heeft niet alleen de door partijen overeengekomen
rechtsgevolgen, maar ook die welke, naar de aard van de overeenkomst, uit de wet, de gewoonte
of de eisen van redelijkheid en billijkheid voortvloeien."
10