Rónán Condon, ‘After Law Society v MIBI: Contextualism and Contracting in Irish Contract Law’

… In Law Society v MIBI and Greene v IRBC, two recent Supreme Court judgments, the Court stated that interpretation should not rest solely on ‘internal linguistic considerations’, and instead expounded a contextualist default legal position. However, while the Court has endorsed the modern approach to interpretation, the different opinions and judgments equivocate on just how far along the road to unswerving contextualism the Court is prepared to travel. What sets the different shades of contextualism apart is a certain reservation, expressed particularly in the main Law Society dissent and in Greene, doubting the relevance of the transactional context for ‘formal’ contracts. The Law Society majority, in contrast, held that while words should be taken seriously in their proper context, interpretation is always ‘holistic’.

The purpose of this article is to demonstrate that this apparently fine distinction is, in fact, of great importance for contract law. Questions of legal interpretation have long been a locus for broader discussions about how well contract law pursues its function. Assuming that contract law aims to facilitate parties’ agreements by giving effect to their reasonable expectations, the key question is whether contract law better obtains this objective through a default that emphasises the text or one which starts from the broader commercial context in which contracts are embedded. This difference of opinion between majority and dissenting opinions will be considered in part III in which the broad contextualist default position will be favoured because of its capacity to accommodate, as distinct from distort, a greater range of contracting practices including the relational contract. Before doing so it is necessary to put the plain meaning rule, along with ‘narrow’ and ‘broad’ contextualism, in relief by undertaking a survey of Irish case law. This exercise is not intended simply as one providing a summary of the law, but rather is one that seeks to illuminate the different legal approaches and their underlying assumptions …

€ (Westlaw)

Rónán R Condon. ‘After Law Society v MIBI: Contextualism and Contracting in Irish Contract Law’, The Irish Jurist: 2019, 62(62), 51-71.

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