Category Archives: Interpretation
Ben Luo, ‘Eliminating the Common Law Limitations on Force Majeure Clauses’
ABSTRACT This Note will argue that as a matter of law, courts should not apply common law limitations when interpreting catch-all provisions in contractual force majeure clauses. Instead, to properly limit the potential all-encompassing scope of force majeure catch-alls, courts should rely on the more general principles of contract interpretation. Part I of this Note […]
Christiane Wendehorst, ‘Discussion Draft: Principles for AI in Contracting’
ABSTRACT The ‘Principles for AI in Contracting’ are a draft set of proposed legal principles to guide the application of existing law and the development of new law in relation to automated contracting. They may serve as a source of inspiration for legislators and courts, as well as for those involved in preparing industry standards, […]
Ethan Leib, ‘The Textual Canons in Contract Cases: A Preliminary Study’
ABSTRACT This Essay is a first effort to explore how linguistic canons function in contract cases. Most lawyers know about ejusdem generis, expressio unius, and noscitur a sociis from their work in statutory interpretation, but no one has attempted any systematic inquiry into how these canons figure in contract interpretation. Looking at two jurisdictions’ use […]
Tara Chowdhury and others, ‘Consequential Damages: Alien Vomit or Intelligent Design?’
ABSTRACT Consequential damages have been a cornerstone of contract doctrine since the broken crankshaft in Hadley v Baxendale. And the Hadley rule is one of the most prominent defaults across the common law world. Despite this, provisions barring consequential damages abound in high-impact deals and contract theorists cannot agree on why. One camp argues that […]
‘Good faith: reliance on the repugnant’
English law has, to put it mildly, a fractious relationship with the concept of good faith. There is a deep-rooted scepticism towards it that has often manifested as outright hostility: Lord Ackner famously described the duty to negotiate in good faith as ‘inherently repugnant to the adversarial position of the parties’ (Walford v Miles). Indeed, […]
Viktor Mikryukov, ‘Legal Analogy in the Cases of Overcoming a Contract’s Verbal and Numerical Ambiguity’
ABSTRACT The relevance of the research stems from the wider spread of contract conflicts and legal disputes caused by verbal and numerical ambiguity of certain contract terms, given the absence of a special legislative rule to overcome such ambiguities. The work aims to identify and evaluate the most effective law enforcement methods of overcoming the […]
‘Meaning of covenant to reinstate to “bare shell” condition’
AFH Hong Kong Stores Ltd v Fulton Corporation Ltd ([2022] HKCA 1243) concerned the interpretation of a tenant’s covenant to reinstate the demised premises to a ‘bare shell’ state on the determination of the lease. The premises were retail premises over five floors of a building in the Central district of Hong Kong. When it […]
Bławat, ‘The Court’s Interference with Contracts by Supplying and Converting the Contractual Terms’
ABSTRACT Most modern legal systems have been searching for a legal measure that would help to imply omitted terms as well as rescue the validity of unsuccessfully concluded agreements, and they found such a solution in the concept of supplementary interpretation of contract, an example of which is conversio actus iuridici. The tendencies visible in […]
Marcus Moore, ‘Demystifying Implied Terms’
ABSTRACT Recent years have witnessed significant interest in demystifying the implication of contract terms. Whilst the discussion thus far has elicited some answers, the subject remains notoriously ‘elusive’. This article advances discussion in the field. It argues that underlying recent debates are deeper issues that must be brought to the surface. These include theoretical incoherence […]
Giliker, ‘Contract Negotiations and the Common Law: A Move to Good Faith in Commercial Contracting?’
ABSTRACT Classically a duty to negotiate commercial contracts in good faith has been seen as part of the civil, not the common, law world. Common law commercial lawyers have long resisted the lure of ‘good faith’ as a contractual concept, despite engagement with civil law principles in harmonisation projects, by virtue of membership of the […]