Attaining Implied Will of the Parties in Concluding a Contract and its related Challenges

Abstract

In concluding a contract, the parties try to agree on the issues that are essential to them and settle on the subjects that form the main basis of the contract. However, contract-related issues are always implicitly understood from the contract when it is signed, taking into account the entirety of the contract and the circumstances surrounding it. Thus, the parties' wills and authorities are not necessarily constrained to explicit will and what is stated in the contract's wording. Instead, sometimes this will can be understood implicitly and indirectly, and in terms of validity, it binds and commits the parties to the agreement just as the explicit will. How ascertaining the parties' implicit wills and authorities while concluding the contract is crucial in the meantime. In this context, the use of custom or supplementary law, pre-contractual negotiations, and other approaches to attain the implied will can be suggested, although each has some challenges. The present study made reviews the applied strategies and solutions and evaluates them. It also introduced the paradigm of 'reasonable and conventional trader' as an effective criterion to attain the implicit will of the contract parties.