Civil Law and UAE Gap-Filling Techniques in UAE Civil Law

1. Introduction

Gap-filling refers to the legal techniques used by a court when a dispute is not completely answered by an express statutory provision.

It is particularly important in UAE civil law because civil legislation cannot expressly anticipate every:

commercial transaction;

technological development;

contractual arrangement;

property relationship;

digital asset;

business practice;

cross-border transaction; or

emerging form of civil liability.

The UAE's approach is therefore not simply to allow judges unlimited discretion. Instead, it establishes a hierarchy of legal sources and interpretative methods.

The new Federal Decree by Law No. 25 of 2025 on the Civil Transactions Law, effective from 1 June 2026, is now the principal federal civil-law framework. The older 1985 Code remains important when analysing historical cases, but its article numbering should not automatically be transferred to the new Code.

2. Meaning of a Legal Gap

A legal gap exists when:

A dispute requires a legal rule, but no directly applicable legislative provision expressly resolves the precise question.

For example, legislation may regulate ownership of tangible property but not expressly address a newly developed form of digital property.

The judge then has to determine whether:

an existing provision can be interpreted or applied;

another legal principle fills the gap;

custom provides the answer;

principles of Islamic jurisprudence assist;

general principles of justice provide guidance; or

the matter ultimately requires legislative intervention.

This produces an important distinction:

Interpretation

The law already contains the answer, but its meaning must be determined.

Gap-filling

The legislation does not provide a sufficiently specific answer, so another recognised legal source or principle must supply the rule.

3. UAE's Hierarchical Approach to Gap-Filling

The UAE civil-law method can broadly be understood through the following sequence:

Legislation

↓

Interpretation according to the legislative text and applicable principles

↓

Islamic jurisprudential principles where relevant

↓

Custom (`urf) where legally permissible

↓

General principles of law, natural law and justice where the Code permits their use

↓

Judicial application to the particular facts

This is different from a system in which judges are simply free to create whatever rule appears equitable.

The purpose is:

Legal certainty first, controlled flexibility second.

4. Article 1 of the New Civil Transactions Law

The new Code's general methodology is particularly important.

The starting point is the legislative provision itself. Where legislation regulates a matter, courts should apply the provision according to its text and meaning.

This means that gap-filling cannot be used as a justification for ignoring a clear mandatory statutory rule.

The basic principle is:

No gap-filling against a clear legislative command.

This protects separation of powers and prevents judicial legislation.

5. Islamic Jurisprudence as a Gap-Filling Resource

UAE civil law has historically given an important role to the principles of Islamic jurisprudence (fiqh).

The older Civil Transactions Law expressly provided that where no provision was found, the judge would turn to Islamic Sharia and then to custom, subject to the statutory hierarchy. (UAE Legislation)

The new Civil Transactions Law continues to recognise Islamic jurisprudential principles as an important interpretative source.

This does not mean that every civil dispute is decided by selecting an individual religious opinion.

Rather, the system uses recognised jurisprudential principles as part of the legal methodology.

Examples include principles concerning:

good faith;

prevention of harm;

unjust enrichment;

contractual obligations;

necessity;

custom;

compensation;

certainty;

prevention of abuse.

6. Custom (`Urf) as a Gap-Filling Technique

Custom is one of the most important practical mechanisms for filling gaps in commercial relationships.

Commercial practices often develop faster than legislation.

For example, merchants may develop accepted practices concerning:

delivery;

payment;

trade terminology;

banking transactions;

shipping;

insurance;

construction;

brokerage;

franchise relationships;

digital commerce.

The new Civil Transactions Law expressly recognises commercial custom in contractual interpretation. Article 120, for example, provides that what is customary among merchants may be treated as an agreed contractual condition. (UAE Legislation)

Conditions

Custom cannot normally override:

mandatory legislation;

public order;

morals;

express contractual provisions where the law gives priority to those provisions.

Therefore:

Custom fills silence; it does not ordinarily destroy mandatory law.

7. Good Faith as a Gap-Filling Principle

Good faith is another important mechanism.

Where a contract does not specify every aspect of performance, courts can examine:

the nature of the transaction;

the legitimate expectations of the parties;

established commercial practice;

necessary ancillary obligations;

honest performance;

avoidance of abusive conduct.

The new Civil Transactions Law's contractual interpretation rules expressly require consideration of justice and good faith. (UAE Legislation)

Thus, good faith can operate as a supplementary principle, particularly where contractual language does not completely answer a practical question.

8. Nature of the Transaction

Another gap-filling technique is consideration of the nature of the transaction.

A contract rarely operates in isolation.

For example, a construction contract may not expressly state every obligation concerning:

access;

cooperation;

technical information;

inspection;

coordination;

safety;

documentation.

The court can consider what obligations are naturally connected with the transaction.

This prevents a party from arguing:

“The contract does not expressly mention this obligation, therefore I have no responsibility.”

The question becomes:

Is the obligation legally and commercially inherent in the transaction?

9. Contractual Interpretation as Controlled Gap-Filling

The new Code establishes detailed interpretative principles.

Article 120 provides, among other things, that:

contractual consent is central;

intentions and meanings may be considered rather than merely formal wording;

literal meaning is generally respected;

express terms prevail over implication;

commercial custom may be considered;

contracts should be interpreted consistently with justice and good faith;

surrounding circumstances may be considered. (UAE Legislation)

This creates a structured method for resolving contractual uncertainty.

The formula is:

Contract Text → Context → Intention/Meaning → Custom → Good Faith → Legal Consequence

10. Case Law: Ashok Kumar Goel v Credit Suisse [2021] DIFC CA 002

This case is an important authority concerning interpretation under UAE law.

The DIFC Court of Appeal discussed Article 265 of the former UAE Civil Transactions Law, under which a clear contractual provision was not to be departed from merely to search for another intention. Where interpretation was required, the court could examine the mutual intention of the parties, the nature of the transaction and relevant commercial custom. (DIFC Courts)

Principle

The court does not invent a new contractual bargain.

Instead, it attempts to determine the legal meaning of the bargain the parties actually made.

Gap-Filling Significance

Where the contract is incomplete or ambiguous, the court can use:

Text + context + transaction + custom + intention

rather than relying exclusively upon isolated words.

11. Case Law: Credit Suisse v Ashok Kumar Goel [2020] DIFC CFI 066

The first-instance proceedings similarly explained the UAE Civil Code methodology for contractual interpretation, including the importance of determining the parties' joint intention and using relevant circumstances where the wording requires interpretation. (DIFC Courts)

Principle

Contractual interpretation can provide an indirect gap-filling function.

Importance

It prevents every contractual silence from becoming a complete legal vacuum.

12. Case Law: Access Group DWC LLC v BLS International FZE [2023] DIFC CFI 091

This case considered contractual interpretation, good faith and the role of UAE Civil Code principles.

The court referred to principles concerning:

contractual wording;

good faith;

obligations arising from law and custom;

the nature of the transaction;

abuse of rights. (DIFC Courts)

Principle

Contractual obligations may extend beyond the literal text where the law recognises obligations arising from:

good faith;

custom;

the nature of the transaction; and

applicable law.

Gap-Filling Significance

This is particularly useful where a modern commercial contract cannot practically specify every contingency.

13. Case Law: Michael George Forbes v Robert Kidd [2023] DIFC CFI 081

This case examined the requirements for contractual formation under UAE law, including agreement, defined subject matter and lawful cause, and considered the statutory rules governing expression of consent. (DIFC Courts)

Principle

Courts can determine contractual formation by looking beyond a single formal document where the law recognises conduct and circumstances as evidence of consent.

Gap-Filling Significance

This becomes increasingly important for:

electronic contracts;

platform transactions;

automated contracting;

email agreements;

conduct-based transactions.

It demonstrates how existing legal principles can adapt to new transactional forms.

14. Case Law: Khaled Salem Musabeh Humad Al Mheiri v John Cameron [2025] DIFC CA 008

This recent case is significant because the DIFC Court considered UAE-law issues involving misrepresentation and apparent authority.

The Court noted that UAE courts do not apply precedent in exactly the same manner as common-law courts, although UAE judicial decisions provide useful guidance concerning the construction and application of Civil Code provisions. (DIFC Courts)

Principle

UAE judicial decisions provide interpretative guidance, but they do not operate identically to binding common-law precedent.

Gap-Filling Significance

This distinction is crucial.

A UAE court can use previous judicial reasoning to:

understand statutory language;

maintain consistency;

identify established principles;

resolve uncertainty.

But the judge remains bound by the applicable legislative framework.

15. Case Law: Industrial Group Ltd v Abdelazim El Shikh El Fadil Hamid [2022] DIFC CA 005 & 006

This case provides a particularly important comparative illustration.

The DIFC Court of Appeal held that DIFC Courts are common-law courts whose law can develop incrementally, but that development must remain within the statutory framework. The Court specifically rejected judicial creation of a tort where doing so would amount to impermissible judicial legislation. (DIFC Courts)

Principle

A legal gap does not automatically give the judiciary power to legislate.

Importance for UAE Gap-Filling

This illustrates the boundary between:

judicial interpretation

and

judicial legislation.

That distinction is essential for legal certainty.

16. Case Law: DIFC Investments Ltd v Dubai Islamic Bank [2022] DIFC CFI 024

This case involved questions concerning assignments and the legal nature of rights under UAE/DIFC law.

The court considered the applicable legal framework and noted that the concept of a trust is not part of ordinary UAE law in the same way it operates within common-law systems. (DIFC Courts)

Principle

Before filling a legal gap, the court must first determine:

Which legal system applies?

What legal institution is actually involved?

Does the proposed doctrine belong to that legal system?

Is the court authorised to introduce it?

Gap-Filling Significance

This prevents courts from importing foreign legal concepts merely because they appear useful.

17. Characterisation Before Gap-Filling

One of the most important techniques is legal characterisation.

Suppose a dispute concerns a new digital arrangement.

The court should first ask:

What legally is this transaction?

It could be:

a sale;

lease;

agency;

assignment;

loan;

guarantee;

custody arrangement;

service contract;

fiduciary relationship;

property interest;

unjust enrichment claim.

Only after characterisation should the court consider whether a gap actually exists.

Thus:

Facts → Characterisation → Applicable Law → Gap Identification → Gap-Filling

18. Distinguishing a Genuine Gap from Difficult Interpretation

Not every difficult case represents a legal gap.

Situation 1 — Clear Rule

The statute directly answers the issue.

Result: Apply the statute.

Situation 2 — Ambiguous Rule

The statute applies but its meaning is uncertain.

Result: Interpret the provision.

Situation 3 — Incomplete Rule

The statute regulates the area but does not address a particular consequence.

Result: Apply recognised supplementary principles.

Situation 4 — Genuine Legislative Silence

No applicable statutory rule exists.

Result: Follow the legally authorised hierarchy of supplementary sources.

19. Gap-Filling Through General Principles

General civil-law principles can be particularly important.

Examples include:

A. Good Faith

Parties should perform obligations honestly and fairly.

B. No Unjust Enrichment

A person should not obtain an unjustified benefit at another's expense.

C. Abuse of Rights

A formally existing right cannot necessarily be exercised unlawfully or abusively.

D. Compensation

A person who causes legally recognised damage may be required to compensate the injured party.

E. Causation

Compensation should be connected to legally attributable loss.

F. Protection of Legitimate Interests

Courts can consider legally protected interests when determining consequences.

20. Gap-Filling Through Commercial Practice

Commercial custom becomes particularly important in:

banking;

construction;

shipping;

insurance;

commodities;

franchising;

brokerage;

financial services;

technology;

logistics.

For example, if merchants consistently follow a particular method of calculating delivery periods, that practice may help determine the meaning of an otherwise incomplete contractual provision.

However:

Custom must be proved or established where its existence is disputed.

21. Gap-Filling in Digital Transactions

Digital transactions create new gaps because technology develops rapidly.

Consider:

Traditional property → digital asset

Traditional agent → AI-enabled agent

Traditional contract → smart contract

Traditional evidence → blockchain evidence

Traditional payment → stablecoin

The court does not necessarily need a completely new legal doctrine for each.

Instead:

Step 1

Characterise the legal relationship.

Step 2

Identify existing civil principles.

Step 3

Determine whether those principles can operate technologically neutrally.

Step 4

Use recognised supplementary sources where necessary.

Step 5

Develop the application cautiously.

22. Gap-Filling and AI

AI creates a particularly important future gap-filling problem.

Suppose an AI system:

generates a contract;

makes an automated payment;

recommends a transaction;

causes financial loss;

generates misleading information.

The court may first use existing doctrines involving:

agency;

negligence;

contractual liability;

misrepresentation;

causation;

unjust enrichment;

fiduciary responsibility.

Only where those doctrines genuinely fail should a new legal rule be considered.

The key principle is:

New technology does not automatically require new legal categories.

23. Gap-Filling and Digital Assets

The Techteryx litigation provides an important example of courts applying traditional remedial concepts to a sophisticated digital-asset dispute.

The dispute involved stablecoin reserves and issues concerning proprietary rights, tracing and interim protection.

The significance for gap-filling is that the court could work with existing concepts such as:

property;

proprietary claims;

tracing;

injunctions;

freezing relief;

disclosure.

Thus:

Digital technology + established civil remedies = adaptive private law

24. Gap-Filling and Fiduciary Relationships

Gate Mena DMCC v Tabarak Investment Capital Ltd [2023] DIFC CA 002 provides another useful example.

The Court examined fiduciary obligations arising from entrusted authority and control over another's affairs.

This methodology can become important in emerging relationships such as:

digital asset custody;

investment platforms;

financial technology;

asset management;

data custodianship.

The court can ask:

Does the relationship functionally involve trust, confidence and discretionary control?

rather than:

Does the relationship have exactly the same label as a traditional fiduciary relationship?

25. Limits on Gap-Filling

Gap-filling has important boundaries.

1. Clear Statutory Text

A court should not use gap-filling to contradict an unambiguous mandatory rule.

2. Public Order

Custom or contractual arrangements cannot override public-order requirements.

3. Mandatory Rules

Private agreement cannot ordinarily eliminate mandatory statutory protections.

4. Institutional Competence

Courts should not create comprehensive regulatory regimes better suited to the legislature.

5. Legal Characterisation

A court must first identify the correct legal category.

6. Proof

Facts supporting a claimed custom, practice or implied obligation must be established.

7. Jurisdiction

The court must determine which legal system applies before importing principles from another system.

26. UAE Civil Law vs DIFC Common-Law Gap-Filling

This distinction is extremely important.

The Industrial Group case demonstrates the DIFC Court's concern that judicial development must remain within its statutory authority. (DIFC Courts)

Therefore, a legal technique valid in DIFC common law should not automatically be transplanted into federal UAE civil law.

27. Role of Precedent in UAE Gap-Filling

UAE federal courts do not operate under the same doctrine of binding precedent found in traditional common-law systems.

Nevertheless, previous judgments are highly valuable for:

consistency;

interpretation;

identifying established legal principles;

understanding statutory provisions;

predicting judicial reasoning.

As Al Mheiri v Cameron illustrates, UAE judicial decisions can provide useful guidance concerning the construction and application of the Civil Code. (DIFC Courts)

Therefore:

Persuasive judicial consistency is different from strict stare decisis.

28. Role of Comparative Law

Comparative law may sometimes assist courts, especially where:

the statutory provision is based upon a foreign legal concept;

international commercial practice is relevant;

the relevant institution is internationally recognised;

the governing legislation expressly incorporates foreign principles.

But comparative law should not become an unrestricted source of UAE law.

The correct approach is:

UAE statutory framework → UAE legal principles → authorised supplementary sources → carefully used comparative reasoning

rather than:

Foreign law → automatically imported into UAE law.

29. Gap-Filling in the New UAE Civil Law Era

The 2026 legal environment is particularly significant because the new Civil Transactions Law modernises many areas of private law.

This means courts will increasingly have to determine:

how new provisions interact with established principles;

which historical case law remains persuasive;

whether older interpretations remain compatible with the new wording;

how traditional civil concepts apply to digital transactions;

how new contractual doctrines operate in practice.

Therefore, future UAE gap-filling will probably involve a combination of:

Codification + Judicial Interpretation + Commercial Custom + Islamic Jurisprudence + Technological Adaptation

30. Six Core Case Laws at a Glance

31. Practical Gap-Filling Test

A UAE civil-law court can conceptually approach an unresolved question through the following sequence:

Step 1 — Identify the facts

What actually happened?

Step 2 — Characterise the legal relationship

Contract? Property? Tort? Agency? Assignment? Unjust enrichment?

Step 3 — Search the legislation

Is there an express applicable rule?

Step 4 — Interpret the existing rule

Can the issue be resolved through ordinary statutory interpretation?

Step 5 — Examine applicable principles

Good faith? Abuse of rights? Causation? Compensation? Other general principles?

Step 6 — Examine recognised custom

Is there an established commercial or local custom?

Step 7 — Consider Islamic jurisprudential principles

Where the statutory framework requires or permits this.

Step 8 — Consider justice and general legal principles

Only within the authority provided by the applicable legal framework.

Step 9 — Consider comparative reasoning cautiously

Only where legally appropriate.

Step 10 — Apply the rule to the facts

The final result must remain legally reasoned and explainable.

32. Central Formula

For examination purposes, remember:

STATUTE → INTERPRETATION → CHARACTERISATION → FIQH PRINCIPLES → CUSTOM → GENERAL PRINCIPLES → JUDICIAL APPLICATION

And the limitation:

GAP-FILLING ≠ JUDICIAL LEGISLATION

33. Conclusion

Gap-filling is essential to the functioning of UAE civil law because legislation cannot predict every future transaction, technology or dispute. The UAE approach seeks to combine codification with controlled flexibility.

The principal mechanisms include:

statutory interpretation;

principles of Islamic jurisprudence;

custom and commercial practice;

good faith;

nature and circumstances of the transaction;

general civil-law principles;

careful use of judicial guidance; and

limited comparative reasoning where legally appropriate.

The case law demonstrates an important boundary. Ashok Kumar Goel, Credit Suisse, Access Group, and Forbes illustrate how interpretation and contractual context can resolve uncertainty. Al Mheiri demonstrates the guidance function of UAE judicial decisions, while Industrial Group shows that courts cannot transform gap-filling into unrestricted judicial legislation. DIFC Investments emphasises the importance of identifying the applicable legal system, and Techteryx demonstrates how established private-law remedies can respond to novel digital transactions. (DIFC Courts)

The fundamental principle is:

A UAE court fills a genuine legal gap by moving through recognised legal sources and principles in a controlled hierarchy; it does not treat legislative silence as unlimited permission to create new law.

Exam formula:
Clear Statute → Apply → Ambiguity → Interpret → Silence → Recognised Supplementary Source → Apply to Facts → Reasoned Remedy.