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The answer to the last point made is surely this: the "rule of law" explanation is better than the implied term explanation because the latter suggests that the justification for the doctrines of innocent mistake/frustration is that they give effect to what the parties implicitly intended and are therefore important for the same reasons as other rules of law justified in that way.

The thing is that if we are wrong then there is a danger that those doctrines will develop away from their proper justification and fulfil their purposes less well.

The doctrines of innocent mistake et al are justified not by a need to give effect to the intentions of the parties but by other important values: efficiency, substantive equality etc.

While it is true that the value of the principle that we should uphold what the parties intended can itself only be explained by reference to efficiency, autonomy etc, we need to recognise those situations in which we are *not* giving effect to those values just to the extent that they favour the intentions of the parties but to other extents and in their capacity as values supporting other principles (such as the principle that no man should profit from his own wrong for example).

Any notion that giving effect to these values is making decisions "for some unnamed criteria of policy or fairness" would be radically false: these values can be difficult to articulate and identify but they have names and it seems to me only go "unnamed" when judges pretend that doctrines such as those discussed here can be explained in terms of contractual intention.