Category Archives: Interpretation

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 […]

Gregory Klass, ‘Contract Exposition and Formalism’

Abstract: Formalism in contract law has had many defenders and many critics. What courts need, however, is an account of when formalist approaches work and when they do not. This article addresses that need by developing a general theory of the rules of contract interpretation and construction — contract ‘exposition’. The theory distinguishes inter alia […]

Gregory Klass, ‘Interpretation and Construction in Contract Law’

Abstract: In their technical senses, ‘interpretation’ refers to the search for a legal text’s meaning, ‘construction’ to the determination of its legal effect. Although scholars have long recognized the difference between the two activities, today many do not attend to it, and the relationship between them remains understudied. An adequate account of the interpretation-construction distinction […]

Mark Greenberg, ‘What Makes a Method of Legal Interpretation Correct? Legal Standards vs. Fundamental Determinants’

Abstract: William Baude and Stephen Sachs argue for the importance of the ‘law of interpretation’ – legal standards that govern how statutes, constitutional provisions, and other legal materials are to be interpreted. Their article begins by following and developing a cluster of arguments I have elaborated in recent work – arguments that emphasize the importance […]

Ben-Shahar and Strahilevitz, ‘Interpreting Contracts via Surveys and Experiments’

Abstract: Interpreting the language of contracts is the most common and least satisfactory task courts perform in contract disputes. This article proposes to take much of this task out of the hands of lawyers and judges, entrusting it instead to the public. The article develops and tests a novel regime – the ‘survey interpretation method’ […]

Uri Benoliel, ‘The Interpretation of Commercial Contracts: An Empirical Study’

Abstract: The theoretical debate over contract interpretation revolves over one central question: what is the preference of most contracting parties for contract interpretation rules. Textualist theorists believe that most parties prefer textualist rules of interpretation, under which the contract interpreter must normally consider only the contract’s written text. In contrast, contextualist theorists believe that most […]

Caitlin Moustaka, ‘The Admissibility And Use Of Evidence Of Prior Negotiations In Modern Contract Interpretation’

Abstract: This article examines the juridical approach in Australia to ‘the rule’ that evidence of prior negotiations is excluded as an aid to the interpretation of written commercial contracts. It analyses three fundamental problems with the rule. First, the unclear bounds of the formulation of the rule and exceptions. Second, the unpredictable application of the […]

Adam Samaha, ‘Do More Interpretive Sources Mean More Discretion?’

Abstract: Observers have suggested that adding sources of interpretation tends to increase interpreter discretion. The idea is embedded in a quip, attributed to Judge Leventhal, that citing legislative history is like ‘looking over a crowd and picking out your friends’. Participants in debates over interpretive method have applied the same idea to the proliferation of […]