Attention should be paid to this cautious language. Indeed, the problem of a deficiency in a contract, which the theory of implicit stipulation comes to solve, did not disappear with the enactment of the Contracts Law (General Part). The fulfillment of the deficiency is inherent to the fulfillment of the contract. It is the result of man's limitations, who is unable and sometimes unwilling to anticipate and regulate in advance what may happen. However, there has been a change in the legal perception regarding the technique of solving the problem. Justice H. Cohen rightly noted that since the enactment of the Contracts Law , "we no longer call them implied terms" (ibid.). The normative process is not that of inserting an implied stipulation into the contract, but of filling a deficiency in the contract in accordance with the principle of good faith. This is how Justice H. Cohen acted in that case, noting that:
"...I also see the answer to the legal question in the provisions of the law that require good faith in the performance of a contract..." (ibid., p. 299).
The tests that the case law formulated – before the enactment of the Contracts Law (General Part) – with respect to an implied stipulation must be examined according to the degree of their suitability to the principle of good faith. If there is a match between them, there is no reason not to use them as auxiliary tests within the scope of good faith. In any event, I do not accept the view that with the enactment of the Contracts (General Part) Law, the only means of filling a deficiency in the contract is the practice (set forth in section 26 of the Law) or supplementary provisions prescribed in the Law. These measures are limited in their applicability. There is room to rely on the principle of good faith, as a complementary criterion that is lacking in the contract.
From the general to the individual
- Is the program contract lacking with respect to a civil "sanction" for delay in execution?