The Study On Settlement To Dissensions Of Incomplete Contracts

When incomplete contracts are ubiquitous, how to solve the dissension brought about by the absence of the contract is a difficult problem. Both Common Law System and Continental Law System have a mechanism to solve this problem: implied terms and remedy of contract flaw.Firstly, this thesis revealed the causes and the features of incomplete contracts. Incomplete contracts brought alternations to modern contract law. Both Common Law System and Continental Law System formed a mechanism to solve the dissension brought about by the absence of the contract. Secondly, this thesis discussed the theory of implied terms. The theory of implied terms can guide the court to implied terms into the contract, and such terms may be implied from one of three sources: law custom and fact. There are also some tests to restrict the court to violate the intention of the parties. Although the form of the tests is controversial, it is very important to prevent count form violating the intention of the parties. Remedy of contract flaw remedy incomplete contracts with transaction practices indefinite law provisions and remedy by explanation of contracts. But in the third part of this thesis, only the remedy by explanation of contracts was discussed because it mostly embodies the volition of judge. To restrict the power of judge, there are rules in remedy by explanation of contracts. But the rules are not so optimized compare to implied terms. In our country, although the theory of remedy of contract flaw is used to solve the dissension brought about by the absence of the contract, but the restriction tests are worth learning form the theory of implied terms.