Chapter 2: Some Theoretical Considerations
INTRODUCTION 2.01 The existence of the technique of implication of terms necessarily raises questions about the nature of the exercise and its relation to fundamental principles such as freedom of contract and sanctity of contract. In this short chapter the author purposes to explore these issues to some extent, though the degree to which definite conclusions can be reached about such vexed questions is necessarily indeterminate. 2.02 Two approaches are possible: either to consider the, surprisingly limited but diffuse, literature on the question, or to take, as it were, a clean slate and discuss these matters from first principles with just the occasional nod to work already done. It is this author’s intention to adopt a tabula rasa approach, since space is limited and at least some readers will already be familiar with the existing literature. Some of the issues canvassed below have also been touched upon in Chapter 1, which should be read together with this chapter. THE NATURE OF THE TECHNIQUE 2.03 Hitherto, the most thorough current treatment of implication of terms in a book by an English author is probably that of Gerard McMeel. But it is not a book on implication of terms; rather it is entitled The Construction of Contracts and subtitled Interpretation, Implication and Rectification.1 The implication of the title and subtitle read together is that implication of terms is a technique of construction, but not of interpretation. Two words are really necessary to describe the different activities: ‘interpretation’ must mean the process of...
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