Every first-year law student learns about the “gap-filler” function courts play when parties to a contract fail to make provisions for a particular matter, such as price or remedy. If there’s nothing in the contract on point and the parties are at odds, courts may have to step in. One question courts face when asked to do so is whether to fill the gap, and if so, another question is how. A problem in either case is that gaps are a matter of perception. What looks like a gap to one party to the contract might be part of a seamless set of provisions to the other party. And even if both parties and the court see a gap, how wide is it and how much needs filling in?
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