The Sanctity of Contracts in English Law - College of Social ...

42 Curtailment of Freedom by the Courtsgoods in the Sale of Goods Act, were endeavouringto give effect to the intention or will of the parties.So long as there was a background of trade usage,or past professional dealings between the partiesthe implication of unexpressed but understood intentionswas reasonable and not too difficult. Butin the absence of such background the position wasnot so simple. Indeed in ascertaining the impliedintention or will in those latter circumstances thecourts often went far beyond " the regular process ofjudicial construction." 4 In effect they proceeded toestimate what provision the parties would have made,as reasonable people, if they had contemplated factswhich had proved to be beyond their prevision. Theprocess was described by Lord Watson in thesewords 5 : "I have always understood that, when theparties to a mercantile contract such as that ofaffreightment have not expressed their intentions ina particular event, but have left these to implication,a court of law, in order to ascertain the impliedmeaning of the contract, must assume that the partiesintended to stipulate for that which is fair and reasonable,having regard to their mutual interests and tothe main objects of the contract. In some cases thatassumption is the only test by which the meaning ofthe contract can be ascertained. There may be manypossibilities within the contemplation of the contractof charterparty which were not actually present to theminds of the parties at the time of making it, and,when one or other of these possibilities becomes a4 See Pollock on Contracts, 13th ed., at p. 224.•* Dohl v. Nelson, DonVin