Category Archives: Interpretation

‘Non-liability clause signed by two commercial entities does limit damages in business dispute: SCC’

“Upholding the basic principle of freedom of contract between sophisticated commercial parties, the Supreme Court of Canada has ruled 9-0 that a ‘non-liability’ clause in a contract agreed to by two companies in Quebec does operate to limit liability in their business dispute, and is not negated by the doctrine of breach of a fundamental […]

David Tan, ‘Objective Intentionalism and Disagreement’

ABSTRACT Intentionalist theories of legal interpretation are often divided between objectivist and subjectivist variants. The former take an interpretation to be correct depending on what the reasonable/rational lawmaker intended or what the reasonable/rational audience thinks they intended. The latter take an interpretation to be correct where the interpretation is what the speaker actually intended. This […]

David Louk, ‘The Audiences of Statutes’

ABSTRACT Although a maxim of statutory drafting is to identify the relevant audience and draft so that the audience can ‘get the message’, conventional theories of statutory interpretation often overlook important considerations about how statutes communicate and delegate to a diverse range of intended audiences. Statutes exist to change the conduct and behavior of many […]

Atkinson and Dhorajiwala, ‘The Future of Employment: Purposive Interpretation and the Role of Contract after Uber

ABSTRACT A person’s entitlement to workplace rights and protections under English law is conditional on their relationship falling within the legal category of employment, by virtue of them having the requisite status. The employment status of individuals performing on-demand work via digital platforms is particularly contentious and has been a focal point for debate in […]

Bilika Simamba, ‘The Plain Meaning Rule: A Quibble about Nomenclature and a Lot More’

ABSTRACT In the Cayman Islands, a British Overseas Territory, the proper understanding of the plain meaning rule (or literal rule) of statutory interpretation remains unclear. In its most basic iteration, the rule states that, where a statute is clear and unambiguous, the words must be given their natural and ordinary signification; there is no room […]

Erich Schanze, ‘Best Efforts in the Taxonomy of Obligation – The Case of the EU Vaccine Contracts’

ABSTRACT The purchase of Covid-19 vaccines by the EU Commission as agent for the Member States has caused substantial political discussion, including a lawsuit against the producer AstraZeneca in Brussels in 2021. The article looks at these purchase contracts as examples for a problematic use of ‘best efforts’ clauses in commercial contracting, considering some key […]

‘Legal Theory Lexicon: Textualism’

“One of the most important topics in legal theory is ‘legal interpretation’, which deals with the derivation of meaning from legal texts. Of course, legal interpretation is a very large topic, with several different dimensions and approaches. This post will focus on ‘textualism’, and provide some introductory ideas about interpretive theory in general …” (more) […]

Akio Hoshi, ‘Interpretation of Corporate Acquisition Contracts in Japan: A Legal Transplant through Contract Drafting’

ABSTRACT This article explores Japanese transactional lawyers’ attempts to transplant American legal practice concerning corporate acquisition contracts into Japan. Despite their extensive efforts to disseminate legal concepts originating from the common law into the Japanese legal community, their transplantation attempts produced somewhat unexpected results by the promoters of the transplant. Faced with unfamiliar drafting styles […]

‘The Math Confirms It: Contract Clarity Is Good’

“John Locke once lamented the limited ability of language to express an idea when he said, ‘So difficult it is to show the various meanings and imperfections of words when we have nothing else but words to do it with’. He could very well have been talking about an employment contract dispute. An employee may […]

Fareed Moosa, ‘Interpretation of Wills – Does the Endumeni Case Apply?’

ABSTRACT This article argues that the general approach to documentary interpretation articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 4 SA 593 (SCA) (Endumeni) applies also to the interpretation of wills, subject to adaptation for context. It is argued that interpretation of wills and the application of an interpretation to a particular […]