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Trade Usages and Implied Terms in the Age of Arbitration$
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Fabien Gélinas

Print publication date: 2016

Print ISBN-13: 9780199916016

Published to Oxford Scholarship Online: May 2016

DOI: 10.1093/acprof:oso/9780199916016.001.0001

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Usages and Implied Terms under French and Belgian Positive Law

Usages and Implied Terms under French and Belgian Positive Law

A Subjective Approach Tending toward Objectivity

(p.21) Chapter 2 Usages and Implied Terms under French and Belgian Positive Law
Trade Usages and Implied Terms in the Age of Arbitration

Lydie Van Muylem

Oxford University Press

From the adoption of the Civil Code until at least the mid-twentieth century, contractual analysis and interpretation under French and Belgian law was characterized by a subjective approach premised on the existence of, and deference to, parties’ tacit intent. Trade usages also were dealt with subjectively: parties were considered to have tacitly agreed to the imposition of usages despite the potential artificiality of such consent. Recently, a more objective view has begun to develop, at least among scholars, recognizing usages as binding rules independent of any expression of will or intent of the contracting parties. This evolution in the perception of usages illustrates a more general transition from a theory of contracts tied to the will of individuals toward a conception of contracts as instruments shaping societal life by imposing requirements on members of society.

Keywords:   contract interpretation, France, Belgium, usages, subjectivism, objectivism, party autonomy, social dimension of contract

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