On Filling Gaps In Contract

A contract is an agreement concluded between equal civil subjects, in order to establish, modify, or eliminate civil rights and obligations. Terms of the contract are what contracting parties enjoy rights and obligations under, but also constitute a part of the parties' trading scheme. Human reason is limited, and with the social and economic development, such limitations become more obvious, which fundamentally determines the existence of contract gaps. In addition, the reasons for gaps in the contract include the ambiguity of language, the impact of transaction costs and deliberate omissions of the parties. Such gaps will lead to difficulties in the contract performance, and subsequent disputes between parties concerned. As to contracts with gaps, the judge must apply correspondent rules to fill gaps in order to effectively resolve disputes. Whether the gaps are properly filled not only determines whether the verdict can balance interests of the parties concerned, encourage transactions, and promote the economy. Therefore, in the civil trial practice, filling gaps in the contract is particularly important.The paper consists of four parts besides the introduction and conclusion.The first part is basic questions to fill gaps in the contract. This chapter first defines the concept of gaps in the contract. Secondly, it analyzes the reason for gaps in the contract. Finally, this chapter makes an in-depth analysis of the functions and values of filling gaps in contract. Filling gaps is very import. To fill gaps in contract properly can clarify rights and obligations of the parties and balance interests between the parties. Whether to fill gaps in the contract properly not only contributes to fairness and justice, and also promotes economic development by encouraging transactions. Its value not only reflects the desire for fairness, but also reflects the pursuit for efficiency.The second part is methods for filling gaps in contract. This chapter analyzes two major methods for filling gaps in contract. They are filling gaps by contract interpretation and filling gaps by permissive rules. This part introduces how to choose two different methods in different situations. The paper introduces the difference of methods for filling gaps in contract between civil law system and common law system in comparative law terms. This part argues that using common law rules to fill gaps in the case is more conducive to the realization of justice, more in line with party interests, and should be our reference. But China's national conditions and legal traditions have decided that we can't simply copy traditional common law methods to fill the gaps in contract. In this paper, contract classification is the way to improve the rules of filling gaps in contract.The third part elaborates on how to fill the gaps in contract by contract classification. This chapter introduces the distinction between typical contracts and atypical contracts. In accordance with their different characteristics, methods for filling the gaps should be different. To fill gaps' in typical contracts, priority should be given to the method of filling gaps by permissive rules, and in exceptional cases, to the method of filling gaps by supplementary contract interpretation. To fill gaps in atypical contracts, the method of filling gaps by supplementary contract interpretation is favorable.