Category Archives: Interpretation

Kraus and Scott, ‘The Case Against Equity in American Contract Law’

ABSTRACT The American common law of contracts appears to direct courts to decide contract disputes by considering two opposing points of view: the ex ante perspective of the parties’ intent at the time of formation, and the ex post perspective of justice and fairness to the parties at the time of adjudication. Despite the black […]

David McLauchlan, ‘Contracts Don’t Always “Mean” What They Say’

ABSTRACT In this short article Professor McLauchlan discusses aspects of the law of contract interpretation and the New Zealand Court of Appeal’s decision in The Malthouse v Rangatira. McLauchlan, David, Contracts Don’t Always ‘Mean’ What They Say (July 1, 2019).

Rosalie Jukier, ‘Good Faith in Contract: A Judicial Dialogue Between Common Law Canada and Québec’

ABSTRACT In recent years, appellate courts, both in the civilian jurisdiction of Québec and the common law jurisdictions in the rest of Canada, have grappled with the extent of the duty of good faith in contract performance. This paper examines this issue from the perspective of a judicial conversation on the subject occurring between judges […]

Emily Strauss, ‘Crisis Construction in Contract Boilerplate’

ABSTRACT Why might judges interpret a boilerplate contractual clause to reach a result clearly at odds with its plain language? Though courts don’t acknowledge it, one reason might be economic crisis. Boilerplate provisions are pervasive, and enforcing some clauses as written might cause additional upheaval during a panic. Under such circumstances, particularly where other government […]

‘Biting off more than you can chew: no oral modification and entire agreement clauses’

“The Court of Appeal recently considered the application of, and relationship between, no oral modification (NOM) and entire agreement clauses. While this was not a construction case (the appeal in question concerned a contract for the provision of dental services), both types of clause are commonly included in construction contracts. The judgment also restates a […]

Gulati and Kahan, ‘Sleeping Giant Contracts’

ABSTRACT The standard model of contracting assumes that parties agree to the terms optimal for them. Furthermore, if courts misinterpret this language, parties will correct it in subsequent contracts to ensure that future courts don’t make the same error. Scholars have observed, however, that the foregoing assumptions often do not match behavior – particularly in […]

Winkelmann, Glazebrook and France, ‘Contractual Interpretation’

INTRODUCTION “We start with some general points about the interpretation of contracts, before discussing in more detail the methodology of interpretation and, in particular, the modern purposive approach to interpretation with its greater use of extrinsic aids to interpretation. Relevant differences between colloquium jurisdictions are highlighted and similarities to and differences from the position in […]

‘Case Comment: Tillman v Egon Zehnder Ltd [2019] UKSC 32′

“Mark Greaves, a barrister at Matrix Chambers, comments on the decision in Tillman (Respondent) v Egon Zehnder Ltd (Appellant) [2019] UKSC 32 which was handed down on 3 July 2019. The judgment is the first employee competition case to be heard by the Supreme Court in 100 years and provides important clarification on the ‘validity […]

Frederick Wilmot-Smith, ‘Term Limits: What is a Term?’

ABSTRACT Contracts are constituted by their terms. The concept of a term has not received any theoretical attention. I present an analysis arguing that there are important normative reasons to attend to the conceptual analysis: unsound ideologies can be rooted out and the debate on contractual interpretation can be put on a surer foundation. € […]

David McLauchlan, ‘A Sea Change in the Law of Contract Interpretation?’

ABSTRACT This article challenges the recent extra-judicial argument of Sir Geoffrey Vos, Chancellor of the High Court of England and Wales, that there has been a ‘distinct sea change’ in the law of contract interpretation as a result of the UK Supreme Court’s decisions in Rainy Sky SA v Kookmin Bank, Arnold v Britton and […]