Aaron Goldstein, ‘The Public Meaning Rule: Reconciling Meaning, Intent, and Contract Interpretation’

… In this Article, I argue that courts should abandon extrinsic evidence typically associated with the subjective intent of the parties, such as evidence of the parties’ course of performance or course of dealing, as a basis for interpreting negotiated commercial contracts, unless the contract is intractably ambiguous. Courts have increasingly seen this notion of the intent of the parties as a basis for interpreting contracts as problematic. As early as the nineteenth century, legal scholars and jurists began moving away from the concept of a subjective meeting of the minds towards the so-called objective theory of contract where a party’s intent is discerned from the objective manifestations of that intent, such as the party’s acts. However, as explained below, even so-called objective manifestations cannot tell us what the parties to a contract subjectively intended. A given set of objective manifestations is often compatible with numerous contradictory accounts of what a party actually intended …

Aaron D Goldstein, The Public Meaning Rule: Reconciling Meaning, Intent, and Contract Interpretation, 53 Santa Clara Law Review 73 (2013).

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