Category Archives: Interpretation

‘Bacardi guaranteed or indemnified to breeze through contractual interpretation’

“Once again the court looks at the vexed question of the distinction between a guarantee and an indemnity. The main dispute arose under a cost-sharing agreement and was referred to arbitration. This was the trial of a number preliminary issues about the surety obligations under the agreement. I am going to look just one of […]

Deborah Widiss, ‘Proving Discrimination by the Text’

ABSTRACT Employment discrimination laws make the ‘simple but momentous’ declaration that it is illegal to deny employment on the basis of race, sex, religion, or other key aspects of identity. But when employees who have been treated unfairly turn to the courts for relief, courts rarely assess whether their claims meet the statutory standard. Instead, […]

Linford and Nelson, ‘Trademark Fame and Corpus Linguistics’

ABSTRACT Trademark law recognizes and embraces an inherent homonymy in commercial communication: The same word can mean different things in different commercial contexts. Thus, legal protection might extend to two or more owners who use the same symbol (like Delta) to indicate different sources of disparate goods or services (airlines, faucets). Generally, only those uses […]

‘Case Comment: Burnett or Grant v International Insurance Company of Hanover Limited [2021] UKSC 12′

“In this post, Harriet Munro and Rowena Williams, members of the insurance disputes team at CMS, discuss the decision of the UK Supreme Court in the matter Burnett or Grant v International Insurance Company of Hanover Limited [2021] UKSC 12, which concerns the application of a ‘deliberate acts’ exclusion in insurance policies. This action was […]

Ki On Alex Wong, ‘Parliamentary Intention: Deciphering Its Role in Statutory Interpretation in the Australian Constitutional Context’

ABSTRACT Parliamentary intention is a central aspect of statutory interpretation despite the many questions that exist concerning its normative role and desirability. In Lacey v Attorney-General (Qld) and Zheng v Cai, the High Court of Australia sought to diminish the role of objective parliamentary intention in statutory interpretation by alluding to a need for interpretive […]

‘Keep rational and carry on: designating COVID-19 as force majeure’

“A franchisor’s designation of COVID-19 as force majeure was subject to an implied duty of rationality. Failure to take a relevant factor into account breached this duty and entitled the franchisee to terminate the contract. In Dwyer v Fredbar, as part of a lengthy judgment, the court considered a franchisor’s discretion to designate COVID-19 as […]

‘Can you exclude or limit liability for a deliberate breach of contract?’

“The short answer to this question is yes. But matters become slightly more complicated when considering how this can be done. In Mott MacDonald Ltd v Trant Engineering Ltd, the claimant (MM), an engineering contractor, brought a claim for alleged non-payment of its fees by the defendant (Trant) for the provision of design consultancy services […]

Joshua Silverstein, ‘Contract Interpretation and the Parol Evidence Rule: Toward Conceptual Clarification’

ABSTRACT Contract interpretation is one of the most important topics in commercial law. Unfortunately, the law of interpretation is extraordinarily convoluted. In essentially every American state, the jurisprudence is riddled with inconsistency and ambiguity. This causes multiple problems. Contracting parties are forced to expend additional resources when negotiating and drafting agreements. Disputes over contractual meaning […]

Rebecca Kysar, ‘Interpreting by the Rules’

ABSTRACT A promising new school of statutory interpretation has emerged that tries to wed the work of Congress with that of the courts by tying interpretation to congressional process. The primary challenge to this process-based interpretive approach is the difficulty in reconstructing the legislative process. Scholars have proposed leveraging Congress’s procedural frameworks and rules as […]

‘More New York Cases!’

“Thanks again to @NY_Contracts. There are many things about 136 Field Point Circle Holding Co, LLC v Razinski that I do not understand. For example, why would one pay $9 million for the option to purchase a property for $19 million? And why would one do that if one were not absolutely certain that one […]