Implied terms in English and Romanian law

Author:Stefan Dinu
Position:Lawyer in Bucharest Bar Association, MA student , King's College London
Pages:281-290
SUMMARY

This study analyses the matter of implied terms from the point of view of both English and Romanian law. First, the introductory section provides a brief overview of implied terms, by defining this class of contractual clauses and by providing their general features. Second, the English law position is analysed, where it is generally recognised that a term may be implied in one of three manners,... (see full summary)

 
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Implied terms in English and Romanian law
Student Ștefan DINU
1
Abstrac t
This study an alyses the mat ter of implied terms from the point of vi ew of both
Engli sh and Roman ian l aw. First, the introdu ctory section provides a bri ef o verview of
implied terms, by d efining t his class of contract ual clauses a nd by provid ing their gen eral
features. S econd, the English la w posit ion is analysed, where it i s gen erally recognised that
a term may b e implied in one of th ree manne rs, wh ich are described in turn. An empha sis is
made o n the Privy Coun cil’s decisio n in At torney Gene ral of Beli ze v Belize Telecom Ltd
and its impact. Third, t he Roman ian law p osition is described, t he startin g poin t of the
discussi on b eing represented by the p rovisions of Arti cle 1 272 o f the 2009 Civil Code.
Fourth , the study ends by menti oning some p oints of comparison between t he two legal
systems in what concern s the ap proach towa rds implied terms.
Keywords: implied terms, civil la w, common law, princip les of con tract
interp retation
JEL Cla ssification: K12, K22
1. Introduction
The purpose of this study is to analyse the matter of implied contractual
terms, by providing an overview of the legal positions under both English and
Romanian law. As a starting point, it would be useful to define implied terms and
to mention their general characteristics. It is considered that implied terms are
those contractual clauses which may be read into the parties’ agreement, even
though they are not expressly contained in the text of the contract. Therefore, upon
executing a contract, the parties may be subject to certain obligations which stem
not from the written (formal) intention of the parties, but from a different formal
source, namely the law.
2
One must not understand from the previous statement that a term may be
implied into a contract only if there is a specific legal provision in this sense. On
the contrary, in both common law and civil law jurisdictions, a term may also be
implied in various other manners, including by way of custom, usage or by taking
into account wider considerations such as business efficacy or equity. In all these
1
Ștefan Dinu Lawyer in Bucharest Bar Association, MA s tudent, King's College London,
stefan.dinu@kcl.ac.uk
2
Hugh Beale (ed), Chitty on Contracts, vol 1 (2nd supp, 31st edn, Sweet & Maxwell 2014) p ara
13-001. This is also true in civil law jurisdictions: G érard Lyon-Caen, ‘L’obligation imp licite’
(2000) 44 Archives de philosop hie du droit 109.

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