Publication details
Doplňující výklad smlouvy v českém právu - nechtěný návštěvník nebo vítaný host?
| Title in English | Constructive Interpretation - Unwanted Visitor or Welcome Guest? |
|---|---|
| Authors | |
| Year of publication | 2019 |
| Type | Article in Periodical |
| Magazine / Source | Právník |
| MU Faculty or unit | |
| Citation | |
| Web | |
| Keywords | construtive interpretation; interpretation |
| Attached files | |
| Description | A constructive interpretation of the contract is one of options, how to fill a gap in contract arrangements. We proceed from the hypothetical will of the parties at the time of the contract conclusion. In most countries, constructive interpretation of the contract is a standard tool to fill in contract gaps. In Czech law, however, it has been rejected in explanatory report to the Civil Code. Unification models dealing with constructive interpretation (DCFR, CESL), have not been adopted. Its destiny is thus uncertain. It must be taken into account that post-socialist country like Czech Republic will be more sensitive to risks of constructive interpretation (e.g. interfering in the autonomy of parties, information deficit of courts, “temptation of hindsight”, social engineering). In this paper, the author examines the possible adoption of the "constructive interpretation of the contract" in the Czech law within unspoken competition with traditional "gap filling" tools. The author holds pragmatic conclusion that this competition will be fatal for the constructive interpretation: the aim to fill in the gaps could be achieved by normative interpretation of contracts or in the context of ordinary lawmaking. A "constructive interpretation of the contract", which simulates the hypothetical will of the parties retroactively at the time of the contract conclusion, with reservation for exceptional cases, is in principle not necessary. |