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The complementary role of legal rules of judicial origin in English law | ||
| Journal of Anbar University for Law and Political Sciences | ||
| Article 32, Volume 15, Issue: 1 part 1, March 2025, Pages 901-921 PDF (626.32 K) | ||
| Document Type: Research Paper | ||
| DOI: 10.37651/aujlps.2024.154168.1366 | ||
| Authors | ||
| Sura Mohammed Hoobi* ; Shorouq Abbas Fadhil | ||
| College of Law / University of Nahrain | ||
| Abstract | ||
| One of the fundamental and well-established rules on which the contract is based in English law is the freedom of the parties to set the terms of the contract without it being the court's job to set a contractual condition. The terms of the contract without it being the court's job to set a contractual condition or to add to the terms of the contract. The judge does not have the right to fabricate contractual terms out of respect for the sanctity of the contract . However, this may clash with reality due to the insufficiency of the explicit terms to accurately determine all the preferences of the contract, which prompted the English judiciary to complete the scope of the contract with legal rules of judicial origin to grant the unexpressed will of the contracting parties a legal value and activate the intentions of the contracting parties. The English courts have embraced the legal trick to soften the idea of completing the scope of the contract through a technical means based on the assumption that there are implicit clauses that avoid the explicit clauses in the contract. The contract is not limited to the explicit clauses that appear clearly, but rather extends to include the implied clauses assumed in the contract. | ||
| Keywords | ||
| case law; implied clauses; English courts; express clauses | ||
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