Pragmatic Presupposition In Implied Terms In Contract Law

Implied terms refer to the terms concerning a certain part of the consent of the contracting parties omitted only for being too self-evident which would otherwise be expressly stated in the contract. Being a significant concept in the civil laws, implied term has engaged abundant attention and brain of Chinese and foreign scholars. Chinese scholars are mostly concerned with the application of implied terms in Contract Law of China, the distinctions between implied terms in Anglo-American laws and Chinese laws, and further put forward some reforming and improving suggestions to the current implied terms in China from the perspective of laws.Presupposition originated in philosophy, referring to the proposition which the addresser assumes tenable. Later, it became one of basic issues in the field of semantics and pragmatics, and has led to extensive attention and controversies among linguists at home and abroad. In 1971, Edward Keenan first put forward the concept of pragmatic presupposition, whose exploration was followed by later linguists from various aspects. However, their efforts are mainly in the directions of the explanation and application of pragmatic presupposition, such as in fields of teaching, advertising and drama, etc. Studies of implied terms from the perspective of pragmatic presupposition are scarce.Pragmatic presupposition is closely related to the addresser and addressee, concerning their attitudes, beliefs and intentions. In the process of speech communication, in order to ensure an efficient and successful communication, the addresser should make a hypothesis of the addressee's knowledge state to decide what needs to be asserted and what can remain unstated as mere background information. This hypothesis does not have to be true, but it must be asserted on the part of the addresser and be accepted by both sides.The thesis tries to apply the theory of pragmatic presupposition in pragmatics to the study of laws, hoping to offer a new perspective by a combination of the two different disciplines. The author starts with the similarities between implied terms and pragmatic presupposition, then comes to a pragmatic explanation of the concept of implied terms, using the pragmatic presupposition as a bridge to transplant the more advanced implied terms of Anglo-American law system into the law system of our country.The implied term itself is complicated and is more complicated when applied in specific and practical condition because of its flexibility. In Anglo-American law, as a fundamental clause in commercial law, implied terms have been given great attention by law scholars and people in legal practices and have formed a fairly complete system. According to the different content, implied terms are classified into implied terms in statute, implied terms in fact and implied terms in custom.While in the civil law system of our country, implied terms just scatter in the general and specific principles of Contract Law, due to the absence of a complete established system. Summarizing the scattered regulations, we can divide the implied terms in our country into implied terms in law, implied terms in fact and implied terms in custom. But in specific judicial practices, there is no comparatively fixed mode for both parties and people in legal practice to make the application, explanation and defeasibility of implied terms.The thesis reviews three mainstream explanations to the pragmatic presupposition: the speaker's assertions of a specific context; the mutual knowledge shared by the two participants in communication; felicity conditions that a speech act must satisfy. In the author's opinion, each has its own emphasis and a combined comprehensive perspective is meaningful to a good understanding of this complex concept. In the main body, the three explanations of the pragmatic presupposition are matched with the three types of implied terms.The speaker's assertions of a specific context can be regarded as the content in the contract which one party thinks is too self-evident to be written down and assumes can be accepted by the other party.The mutual knowledge shared by the two participants in communication equals to the business customs and well-accepted practices in implied terms.Felicity conditions that a speech act must satisfy can be compared to implied terms in law which shall be applied by the court in order to standardize the commercial activity and ensure the realization of the contract.The author applies the concept of pragmatic presupposition into implied terms, trying to shed a pragmatic light onto this complicated law concept. It is hoped that the present study can help both parties of the contract to get a better understanding of implied terms, help the judicial workers such as judges to recognize implied terms from a novel angle, and promote the perfection of implied terms in our law system.Since studies combining implied terms with the pragmatic presupposition approach are rather insufficient, the author hopes that this thesis can serve as a start and that more attempts of its kind can be made so that theories of pragmatics can find more application in legal theory and legal practice and the construction of the legal modernization in our country can be promoted.