Publication details
Doplňující výklad smlouvy
| Title in English | Constructive Interpretation of Contracts |
|---|---|
| Authors | |
| Year of publication | 2018 |
| Type | Monograph |
| MU Faculty or unit | |
| Citation | |
| Attached files | |
| Description | The contract parties can hardly provide for all future eventualities and the corresponding law do not always offer results that meet the particular requirements of the case. A constructive interpretation of the contract is one of options, how to fill such a gap in contractual arrangements. Courts attempt to derive relevant solutions reflecting the intention of the parties. When filling the gap by interpretation, the court reverts to the rule, which the parties themselves would have agreed upon with regard to the rules of good faith and common usage. Courts 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 study, the author discusses the constructive interpretation of contracts in Czech and German contract law, paying particular attention to the relevant provisions of the Draft Common Frame of Reference. He deals in detail with main aspects of constructive interpretation of contracts: (1) the theoretical background (interpretation methods, will theory against theory of declaration, subjective and objective interpretation, interpretation of contracts with merger clause); (2) the rules and limits of constructive interpretation; and (3) the manner in which lacunae in the contract are filling out. 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 including the severability clauses. The author holds pragmatic conclusion that competition of suppletive law will be fatal for the constructive interpretation in Czech law: 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 takes the solution of the issue away from the parties' autonomy and simulates the hypothetical will of the parties retroactively at the time of the contract conclusion, with reservation for exceptional cases, is in principle in Czech law not necessary. |