Civil Law and UAE: Gap-Filling in Contracts

1. Introduction

Gap-filling in contracts means determining the rights and obligations of parties when their contract does not expressly address a particular situation.

No contract can realistically anticipate every possible event. A commercial agreement may be silent about:

an unforeseen event;

the time or method of performance;

allocation of additional costs;

consequences of technological failure;

cooperation between parties;

a newly arising obligation;

a dispute concerning interpretation.

UAE civil law addresses such situations through a combination of contractual interpretation, good faith, applicable statutory rules, established commercial practice, the nature of the transaction, and judicial reasoning.

The subject has become especially important following the entry into force of Federal Decree-Law No. 25 of 2025 on the Civil Transactions Law on 1 June 2026, which replaced the former 1985 Civil Transactions Law.

2. Meaning of Contractual Gap-Filling

A contractual gap exists when:

The parties have created a legally binding relationship, but the contract does not expressly provide the rule necessary to resolve a particular issue.

For example, A agrees to supply goods to B but the contract does not specify who bears an unexpected storage expense caused by a delay.

The court may need to determine the appropriate contractual consequence by considering:

the express terms;

the intention of the parties;

mandatory statutory provisions;

the nature of the contract;

good faith;

commercial practice;

surrounding circumstances;

established obligations arising from the contractual relationship.

Gap-filling is therefore different from simply rewriting the contract.

3. Difference Between Interpretation and Gap-Filling

These concepts should be distinguished.

Contractual interpretation

The court asks:

What does an existing contractual provision mean?

Gap-filling

The court asks:

What rule should govern a matter that the parties did not expressly regulate?

For example:

Interpretation:
The contract says delivery must occur “within a reasonable period.” What is reasonable?

Gap-filling:
The contract says nothing about who bears an extraordinary transportation expense created after the contract.

The two questions can overlap, but they are not identical.

4. Legal Foundation of Gap-Filling in UAE Law

UAE contract law provides several mechanisms through which contractual gaps can be addressed.

The principal sources include:

the Civil Transactions Law;

mandatory statutory provisions;

principles concerning contractual obligations;

good faith;

commercial usage and custom;

the nature and purpose of the contract;

judicial interpretation;

applicable special legislation.

The new Civil Transactions Law is particularly important because it modernises the UAE's general civil-law framework and contains provisions relevant to contemporary contractual relationships.

5. First Principle: The Contract Remains the Starting Point

Courts do not normally begin by inventing obligations.

The first question is:

What did the parties actually agree?

The court therefore examines:

written terms;

incorporated documents;

schedules;

amendments;

correspondence;

electronic communications;

established dealings between the parties.

If the contract clearly regulates the issue, there is generally less scope for gap-filling.

The principle protects party autonomy and contractual certainty.

6. Determining the Common Intention of the Parties

Where wording is incomplete or ambiguous, the court may examine the parties' intention.

Relevant evidence may include:

negotiations;

correspondence;

conduct;

previous transactions;

performance after conclusion;

industry practice;

commercial purpose.

For example, if parties repeatedly followed a particular method of calculating payment although their written contract did not expressly specify it, their established conduct may help establish the intended contractual arrangement.

7. Good Faith

Good faith is an important concept in UAE contractual law.

A contract is not merely a collection of isolated words. It establishes a relationship in which parties must perform their obligations consistently with the legal nature and purpose of the agreement.

Good faith may become relevant where:

one party deliberately prevents performance;

cooperation is necessary;

information must reasonably be provided;

a contractual mechanism requires honest exercise;

an unforeseen circumstance creates a problem not expressly regulated.

Good faith should not, however, be understood as giving courts unlimited authority to impose whatever obligations they consider desirable.

8. Statutory Gap-Filling

Sometimes the legislation itself supplies the missing rule.

For example, if a contract does not specify a particular consequence but the Civil Transactions Law contains a mandatory or applicable default rule, that statutory rule can fill the contractual gap.

This creates a hierarchy:

Contract → applicable mandatory law → supplementary statutory rules → relevant legal principles/custom

The exact operation depends upon the particular contractual issue and applicable legislation.

9. Commercial Custom and Usage

Commercial practice can be especially important in filling contractual gaps.

A business contract may omit matters that are routinely understood within a particular industry.

Examples include:

banking practices;

shipping customs;

construction practices;

insurance practices;

commodity trading;

franchise arrangements;

professional services.

Where legally recognised, established usage can help determine what parties reasonably intended.

However, custom cannot ordinarily override mandatory law or an express contractual provision that excludes its application where such exclusion is legally permissible.

10. Nature of the Contract

The nature of the contract can also help fill a gap.

Different contracts create different typical obligations.

For example:

Construction contract

May imply obligations concerning:

cooperation;

site access;

specifications;

inspection;

completion.

Agency relationship

May involve:

authority;

accounting;

information;

loyalty.

Lease

May involve:

possession;

maintenance;

use of premises.

Professional-services agreement

May involve:

reasonable professional care;

confidentiality;

cooperation.

Thus, the court may consider the legal character and purpose of the contract when determining an omitted obligation.

11. Necessary and Ancillary Obligations

A contract may create obligations that are not expressly written but are legally necessary for performance.

For example:

A agrees to provide a professional service to B.

Even if the agreement does not expressly say that A must provide information reasonably necessary to perform the service, the circumstances may demonstrate that such cooperation is inherent in the contractual relationship.

Gap-filling therefore sometimes involves identifying ancillary obligations necessary to make the agreed bargain effective.

12. Reasonableness and Commercial Effectiveness

Courts may also have to select between competing interpretations.

Suppose one interpretation makes the contract commercially workable while another interpretation makes a substantial part of the agreement ineffective.

The court may examine the contract as a whole and its commercial purpose.

This does not mean that courts can simply substitute their preferred commercial bargain for that of the parties.

Rather, the objective is to determine the legal consequences most consistent with the agreement and applicable law.

13. Unforeseen Circumstances

Modern contracts increasingly encounter events that parties could not realistically anticipate.

Examples include:

sudden regulatory changes;

technological disruption;

supply-chain collapse;

extraordinary economic events;

unexpected restrictions;

major infrastructure failures.

The UAE civil-law framework contains principles concerning exceptional and unforeseen circumstances.

Such rules are important because they can provide a legal response where strict contractual performance becomes substantially different from what the parties contemplated.

The precise remedy depends on the applicable statutory provisions and facts.

14. Gap-Filling in Long-Term Contracts

Gap-filling is particularly important in long-term agreements.

Examples include:

infrastructure contracts;

distribution agreements;

franchise agreements;

construction projects;

technology outsourcing;

joint ventures;

energy contracts.

A contract lasting ten or twenty years cannot anticipate every commercial development.

Courts may therefore have to determine:

cooperation obligations;

adjustment mechanisms;

allocation of unforeseen costs;

performance standards;

information obligations;

termination consequences.

15. Gap-Filling in Technology Contracts

Technological contracts create new gaps.

For example, a cloud-services agreement may not specify:

what happens after a major cyberattack;

who bears recovery costs;

responsibility for AI-generated errors;

treatment of newly created data;

consequences of platform migration.

Similarly, smart contracts may contain programming instructions without adequately addressing legal contingencies.

Future UAE civil jurisprudence may increasingly apply traditional principles to these technologically complex contractual gaps.

16. Limits on Judicial Gap-Filling

Gap-filling is not unlimited.

A court should not ordinarily:

rewrite the parties' bargain;

contradict an express term;

disregard mandatory legislation;

create an entirely new commercial relationship;

impose obligations inconsistent with the contract's nature.

This limitation protects freedom of contract and legal certainty.

A useful distinction is:

Filling an omission is different from changing the bargain.

17. Case Laws

The following UAE authorities are useful for understanding the judicial principles surrounding contractual interpretation and the determination of contractual obligations. Because many of these decisions pre-date the new 2025 Civil Transactions Law, they should be used primarily for their general jurisprudential principles.

1. UAE Federal Supreme Court – Civil Appeal No. 322 of 1999

The Federal Supreme Court recognised the role of the merits court in interpreting contracts and determining the parties' intention.

Importance

This principle is central to gap-filling because the court must first understand what the parties intended to achieve before deciding how to deal with an omitted matter.

2. Dubai Court of Cassation – Case No. 18 of 2000

The Dubai Court of Cassation emphasised the significance of clear contractual language.

Importance

Where the contract expressly regulates a matter, judicial gap-filling should not be used to undermine the parties' clear agreement.

This protects contractual certainty.

3. Dubai Court of Cassation – Case No. 137 of 2004

This authority concerns contractual interpretation and the principle that judicial interpretation should not improperly rewrite contractual provisions.

Importance

It establishes an important boundary:

A court may interpret or supplement a contract where legally justified, but should not substitute a different bargain for the bargain made by the parties.

4. Dubai Court of Cassation – Case No. 56 of 2004

The case is relevant to the judicial characterisation of contractual relationships.

Importance

Correct characterisation is important because the legal rules applicable to a contract can depend upon its legal nature.

For example, a relationship characterised as agency may generate different obligations from one characterised as an ordinary services contract.

5. UAE Federal Supreme Court – Civil Cassation No. 79 of 2020

The Federal Supreme Court stressed the importance of considering material submissions and defences relevant to the dispute.

Importance

In a contractual gap dispute, a party's evidence concerning:

negotiations;

previous dealings;

commercial practice;

performance;

may be material to determining the missing contractual rule.

6. UAE Federal Supreme Court – Civil Cassation No. 880 of 2021

This jurisprudence illustrates the continuing judicial role in analysing contractual and evidentiary matters rather than simply adopting an expert's conclusions.

Importance

Where a contractual gap involves technical issues—such as construction, engineering, valuation or technology—the court retains responsibility for the ultimate legal determination.

7. UAE Federal Supreme Court – Commercial Cassation No. 767 of 2021

This authority reflects the importance of examining contractual rights and obligations in their factual and commercial context.

Importance

It is particularly useful for understanding long-term commercial contracts where the written document does not expressly regulate every practical aspect of the relationship.

8. UAE Federal Supreme Court – Commercial Cassation No. 1012 of 2022

This case illustrates judicial examination of contractual rights and obligations according to the applicable legal framework and factual circumstances.

Importance

The principle is relevant to modern commercial contracts involving:

technology;

finance;

supply chains;

digital platforms;

cross-border transactions.

18. Practical Example

Suppose a UAE company enters into a five-year technology-services contract.

The contract states:

“The supplier shall maintain the platform and ensure continuous availability.”

But it does not specify what happens when a major cyber incident causes prolonged downtime.

A court could potentially examine:

the express contract;

applicable UAE legislation;

the parties' intention;

the technical nature of the service;

industry practice;

prior performance;

good-faith obligations;

applicable provisions concerning breach, liability and damages.

The court should not simply invent a new commercial bargain. Instead, it determines the legal consequences of the existing contractual relationship using the available legal principles.

19. Future Importance Under the New Civil Transactions Law

The issue becomes particularly significant after 1 June 2026, because the new Civil Transactions Law has replaced the 1985 framework.

Future cases will likely clarify how its provisions operate in relation to:

framework agreements;

pre-contractual negotiations;

long-term contracts;

unforeseen circumstances;

assignment;

works contracts;

professional obligations;

digital transactions;

technology services.

Consequently, future UAE case law will be important in defining the boundary between statutory default rules and judicial gap-filling.

20. Gap-Filling and Party Autonomy

The relationship can be expressed as follows:

Party autonomy
↓
Parties create contractual rules
↓
Contract contains an omission
↓
Court identifies applicable legal framework
↓
Express terms are preserved
↓
Intention, law, custom and nature of contract considered
↓
Missing rule determined
↓
Contract enforced

The fundamental objective is to preserve the parties' bargain while ensuring that the contract can function despite unforeseen or unregulated circumstances.

21. Key Issues for Future UAE Contract Law

Future disputes are likely to concern:

AI contracts

Who bears responsibility for AI-generated performance?

Smart contracts

What happens when code conflicts with contractual intention?

Digital platforms

What obligations exist between platform operators and users?

Blockchain transactions

How are ownership and contractual rights established?

Cloud contracts

Who bears liability following service interruption?

Cybersecurity

What constitutes reasonable contractual security?

Long-term contracts

How should obligations adapt to major technological or economic changes?

Cross-border contracts

Which country's law supplies the missing rule?

22. Conclusion

Gap-filling in UAE contracts is fundamentally about maintaining the effectiveness of contractual relationships without destroying party autonomy.

The principal approach can be summarised as:

Express contractual terms first, applicable law second, and supplementary principles such as intention, good faith, commercial usage and the nature of the contract where an actual gap remains.

The courts' role is therefore not to create an entirely new agreement, but to determine the legal consequences of the agreement the parties actually made.

This issue will become increasingly important under the new UAE Civil Transactions Law, particularly as contracts become longer, more complex, digitally executed and internationally connected. The future of UAE contractual law will consequently depend heavily on how courts balance contractual certainty, party autonomy, statutory rules, commercial practice and fairness in dealing with genuinely unforeseen contractual gaps.