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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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Not Merely Facts

Not Merely Facts

Trade Usages in German Contract Law

(p.81) Chapter 5 Not Merely Facts
Trade Usages and Implied Terms in the Age of Arbitration

Helge Dedek

Oxford University Press

The German law of contract subscribes to an objective theory of contractual interpretation that allows the judge to build the contract as it “should have been” according to pertinent trade usages. Nowadays, trade usages are not, at least expressly, understood as legal rules but rather as facts generating a normative effect by partaking in the normative force of a contractual obligation. At the same time, however, remnants of the historical notion of subjective will theory in contract, by which the practical impact of usages was dependent on their conceptualization as customary law, has perpetuated a preoccupation with the idea that usages are not just facts but are also norms, a special kind of nonlegal “ought.” This ambiguity has given rise to palpable legal repercussions in the form of a judicial practice that is not entirely comfortable with the categorization of usages merely as facts.

Keywords:   contract interpretation, Germany, usages, objectivity norms, facts

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