Gap filling refers to the process of inferring and inserting contractual terms into a contract when the contract fails to specify all necessary terms for the contract to be performed. Courts rely on a series of gap filling rules to carry out this process. Gap filling is justified under the assumption that parties who create a contract must intend to agree to any conditions making that contract possible.
If possible, the court will interpret the contract in such a manner that there is no gap. If every interpretation of the contract contains essential missing provisions, the court can nonetheless find that a contract exists and apply gap filling rules as authorized by UCC §2-207. These gap filling rules are found throughout Article 2 of the Uniform Commercial Code (UCC) and generally focus on ascertaining what the parties’ intentions would have been at the time that they entered the contract.
To determine the intentions of the parties, courts look to the terms of the contract itself, prior course of dealing, usage of trade, and prior course of performance, among other factors.
[Last updated in January of 2023 by the Wex Definitions Team]
- Keywords