Category Archives: Interpretation

‘Will COVID-19 trigger a force majeure clause under my contract?’

“In the light of COVID-19, below is a road map to help you when assessing whether or not a force majeure clause has been triggered in an English law agreement. But first, an apology: you are probably overwhelmed with lists like this. I originally put it together on Friday 13 March (a lifetime ago) with […]

Ryan Catterwell, ‘Striking a Balance in Contract Interpretation: The Primacy of the Text’

ABSTRACT In Wood v Capita Insurance Services Ltd [2017] AC 1173, the UK Supreme Court emphasised that contract interpretation involves ‘striking a balance between the indications given by the language and the implications of the competing constructions’. This paper investigates the nature of the balancing act at the heart of construction. It argues that the […]

Ryan Catterwell, ‘Automation in Contract Interpretation’

ABSTRACT This paper investigates whether the process of contract interpretation (also described as contract construction) can be automated. It approaches the task in two stages. The first part explains contract interpretation as a cognitive process. It demonstrates that interpretation involves: (i) the identification of arguments in favour of each interpretation; and (ii) the weighing and […]

‘Legal Theory Lexicon: Vagueness and Ambiguity’

“This week the Legal Theory Lexicon entry focuses on ‘ambiguity’ and ‘vagueness’ – two important concepts for the theory of interpretation. Some legal texts are ambiguous – they contain words or phrases that can have two or more distinct meanings. And some legal texts are vague – they use concepts that have indefinite application to […]

Cohney and Hoffman, ‘Transactional Scripts in Contract Stacks’

ABSTRACT In conventional transactions, written contracts usually memorialize the terms of the commercial exchange. For deals in which some of the goods being transferred and the forum for the trade are digitized – as in the case of cryptocurrencies – parties may use computer code rather than a written contract to record their terms. Such […]

Christopher Arnull, ‘A sterile and semantic debate about negligence’

INTRODUCTION Why is reference to ‘gross negligence’ controversial in commercial contracts governed by English law? In this article I explain, with a focus on providers of services, how ‘gross negligence’ can feature in commercial contracts, and why these and similar references present challenges. I conclude by exploring how the term might be defined … € […]

‘Pirates, Roverts, Thieves and Boilerplate’

Gregory Klass, Boilerplate and Party Intent, 82 Law and Contemporary Problems no 4, 2019, at 105. In ‘Boilerplate and Party Intent’, just out in Law and Contemporary Problems, Greg Klass unearths the following lovely piece of boilerplate from an insurance contract: ‘Touching the Adventures and Perils which we the Assurers are contented to bear and […]

‘Rethinking Uniformity in Statutory Interpretation’

Ryan Doerfler, Can a Statute Have More Than One Meaning?, 94 New York University Law Review 213 (2019). It is a persistent theme in statutory interpretation theory – one shared by textualists, purposivists, and intentionalists alike – that a statutory term must have the same meaning from case to case and from litigant to litigant. […]

‘On the Uniform Construction of Contract Boilerplate’

“Contract language is often recycled. The same words get reused in separate transactions between different parties. Generally speaking, the fact that different parties use the same boilerplate does not entail that those words should receive the same judicial interpretation in each transaction. Parties’ prior dealings, what they said during negotiations, local usages, the structure of […]

Harold Anthony Lloyd, ‘How To Do Things With Signs: Semiotics in Legal Theory, Practice, and Education’

ABSTRACT Discussing federal statutes, Justice Scalia tells us that ‘[t]he stark reality is that the only thing that one can say for sure was agreed to by both houses and the president (on signing the bill) is the text of the statute. The rest is legal fiction’. How should we take this claim? If we […]