Category Archives: Interpretation

Christopher Bradley, ‘Artworks as Business Entities: Sculpting Property Rights by Private Agreement’

ABSTRACT Modern business entities, such as LLCs, are increasingly created and deployed to accomplish customized transactions and evade legal restrictions. Rather than acting as traditional business enterprises, entities serve as tools to facilitate complex commercial transactions and surmount limitations presented by existing bodies of law. One limitation constrains the ways that private parties can agree […]

Ryan Marsich, ‘Commercial Common Sense in Contract Interpretation: Observations on the Court of Appeal in Technix v Fitzroy and The Malthouse v Rangatira

ABSTRACT The contemporary principles of contract interpretation require courts to have regard to a number of factors to determine the meaning of a contract, including the plain meaning of the express contractual language, the contract’s context, and commercial common sense. These principles superseded the narrower plain meaning rule, which directed courts to interpret contracts in […]

‘Advance to be repaid following force majeure event’

“The Court of Appeal held that the natural reading of a force majeure clause in a diesel supply contract pointed to an express obligation to repay an advance payment following termination due to a force majeure event. In a contract between Nord Naphtha and New Stream, New Stream sold diesel to Nord Naphtha via a […]

‘Copyright (Rights and Remuneration of Musicians, Etc) Bill debated in UK Parliament’

“As previously discussed, the Copyright (Rights and Remuneration of Musicians, Etc) Bill proposed new laws for equitable remuneration for streaming, contract adjustment, right of revocation and transparency. The Bill was debated in the UK Parliament on Friday 3rd December. Here’s what happened [aside from a whole load of completely unnecessary and tedious oversharing from several […]

‘The Accuracy of Economic Analysis of Contract Interpretation’

Omer Pelled and Ohad Somech, ‘The Value of Accuracy in Contract Interpretation’ (August 5, 2021), available at SSRN. In the past twenty years or so, the new formalism, led mostly by legal economists, has been quite influential in contract theory. Focusing on commercial transactions between sophisticated firms, leading scholars have questioned the courts’ competence to […]

Aditya Suresh, ‘Interpreting merger clauses in contracts governed by the CISG: delineating the scope for the use of extrinsic evidence’

ABSTRACT Under Article 8(3) of the United Nations Convention on Contracts for the International Sale of Goods (CISG), parties’ statements, prior negotiations and other external circumstances may be used to assess the presence of subjective or objective intent that can, in turn, be used to interpret contractual terms in international sales contracts governed by the […]

Ryan Doerfler, ‘Late-Stage Textualism’

ABSTRACT In its modern form, textualism promised careful attention to interpretive context. Such attention would allow textualism to be less ‘wooden’ than its earlier manifestations and so to avoid the embarrassing ‘contradictions’ of the sort highlighted by Karl Llewellyn’s table of ‘dueling’ interpretive canons. Avoiding that sort of embarrassment, though, required that textualists be more […]

Kenneth Kettering, ‘Coordination of the Uniform Commercial Code and Common Law’

ABSTRACT Deciding whether an issue that is in the ambit of a statute should be resolved by reference to the statute alone, or whether other sources of law should be applied, is a common interpretative task. The Uniform Commercial Code (‘UCC’) contains rules of interpretation that address the subject, and those rules have not been […]

Asif Hameed, ‘Modern Textualism and the Challenge of Conflicting Statutes’

ABSTRACT How should judges interpret statutes? Sophisticated arguments and expansive programmes have been developed in modern textualist writing with the aim of guiding judges on the practical queries and challenges that they face. One issue has however received reduced treatment: how textualist-minded judges should address conflicts between rules derived from different statutes. We discuss how […]

Moshood Abdussalam, ‘On the Construction of One-Sided Contracts (Particularly in the Information Society)’

ABSTRACT Notwithstanding the reality that one-sided contracts account for many of the transactions in the modern economy, we continue to treat them almost without any differentiation when it comes to contractual construction. The upshot of this is that one-sided contracts are treated in like manner as negotiated bargains and exchanges. This article provides an exposition […]