Category Archives: Interpretation

Carter and Courtney, ‘Unexpressed Intention and Contract Construction’

Abstract: Many contract disputes concern issues of unexpressed intention: the express terms of the contract do not directly answer the particular question raised by the circumstances.  In this article we argue that there are different bases for resolving such issues in the law of contract and we present a hierarchical framework for understanding their interaction. […]

Andrew Gold, ‘Interpreting Fiduciary Law’

Abstract: Although there are exceptions, fiduciary theory has paid limited attention to interpretive methodology. Yet methodology matters, and the distinctive features of fiduciary law offer insights for interpreting private law more generally. Private law theorists commonly assess interpretive theories against a range of criteria, including: fit, coherence, morality, and transparency. I will suggest that fiduciary […]

‘Philosophy of Language and Legal Interpretation’

Brian G Slocum, Pragmatics and Legal Texts: How Best to Account for the Gaps between Literal Meaning and Communicative Meaning, in The Pragmatic Turn in Law: Inference and Interpretation in Legal Discourse (Mouton Series of Pragmatics, forthcoming 2017), available at SSRN. Law is pervasively interested in the proper understanding and application of texts: contracts, wills, […]

Andreas Blank, ‘Common usage, presumption and verisimilitude in sixteenth-century theories of juridical interpretation’

Abstract: The question of how common usage could be constitutive for the meaning of linguistic expressions has been discussed by Renaissance philosophers such as Lorenzo Valla, and it also played an important role in Renaissance theories of juridical interpretation. An aspect of the analysis of common usage in Renaissance theories of juridical interpretation that concerns […]

Jonathan Sumption, ‘A Question of Taste: The Supreme Court and the Interpretation of Contracts’

“Judges are fond of speculating about the motives and practices of businessmen in drafting contracts. It is a luxurious occupation. The rules of admissibility protect them from the uncomfortable experience of being confronted by actual facts. So, I propose to open my remarks this evening with a case study. On 6 February 1663, Samuel Pepys […]

‘Literal or Contextual? What is the Correct Approach to Contractual Interpretation?’

“Over the last twenty years or so, the approach of the English courts to contractual interpretation has moved between a strict literal approach and a more purposive approach. From recent decisions, the courts seemed to be trending back towards the literal approach (as in the Supreme Court decision of Arnold v Britton), moving away from […]

Alexandra Buckingham, ‘Considering Cultural Communities in Contract Interpretation’

Abstract: The art of contract interpretation involves determining the meaning of an agreement. Often, courts must determine whether a particular term is reasonably susceptible to more than one meaning, and if so, they engage in the process of disambiguating the term. This process involves a subtle dance between the traditional and the modern approaches to […]

Neil Andrews, ‘Interpretation Of Contracts And “Commercial Common Sense”: Do Not Overplay This Useful Criterion’

Introduction: … In Section II, we begin by noting the central features of the English rules governing interpretation of written contracts. Beatson LJ in the Globe Motors case (2016) conducted a thorough review of the modern English authorities and Christopher Clarke LJ’s earlier encapsulation in Wood v Sureterm Direct Ltd and Capita Insurance Services Ltd […]

Lee and Mouritsen, ‘Judging Ordinary Meaning’

Abstract: Judges generally begin their interpretive task by looking for the ordinary meaning of the language of the law. And they often end there – out of respect for the notice function of the law or deference to the presumed intent of the lawmaker. Most everyone agrees on the primacy of the ordinary meaning rule. […]

Carney and Bergh, ‘Using Prototype Theory to Determine the Ordinary Meaning of Words’

Abstract: There are a number of ways to determine the ordinary meaning of words, amongst others corpus linguistic and frame semantic approaches – which are not discussed in this note. For the purpose of this note we would like to introduce legal scholars and practitioners to prototype theory, which is possibly one of the best […]