With respect to the implicit or implied principle of the concept derived from the above-mentioned common law, there is no doubt that the Tribunal will be compelled to bear in mind the provisions, principles and values of the Constitution in interpreting a tacit or implied provision in an agreement, given that the Constitution imposes an obligation on the courts to develop the common law, that it is consistent with constitutional values. Implicitly refers to something that has been done or done in silence, as in a tacit agreement. A tacit understanding is manifested by the fact that there is no contradiction or objection and is therefore deduced from the situation and circumstances. Tacit conditions are effective when interpreting agreements and can lead to lengthy litigation; Therefore, everyone should be vigilant when it comes to agreements to ensure that a comprehensive agreement is reached in order to mitigate future conflicts related to tacit conditions. The rules of contract law make it possible to recover damages resulting from an infringement when the injuring party had « reasons to know » such damages at the time of the conclusion of the contract. It is generally observed that demanding parties systematically negotiate through these standard rules, since the extent of consequential damage is highly uncertain and is largely controlled by the non-injuring party. However, some parties maintained the standard rules and some contracts involving experienced actors contain an explicit provision allowing for consequential damages, including loss of profits, in the event of infringement. Those parties fulfil the test, which takes account of consequential damages, only if a `tacit agreement` on their recovery has been concluded. This test, rejected by commentators and most case law outside new York, limits the recovery of consequential damages more than the standard « Reason to Know » test. In this article, I look at contracts that contain explicit « lost profits » clauses and cases where the courts have determined whether the parties have implicitly agreed or whether they had reason to know about the potential loss of profits. I assert that the relevant treaties and cases show that consequential damages clauses are used to resolve a contractual problem that might otherwise frustrate mutually beneficial exchanges. The parties and the courts have recognized that an obligation to pay a loss of profits may reduce the risk of opportunistic behaviour which, in the case of a party, must make a relational investment before the counterparty is provided.
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