Abstract:
In the law of contract questions of risk allocation properly turn, where possible, on interpretation of the agreement. This essay will explore the limits of that approach. It will do so by considering two doctrines that lie at the boundaries of contract interpretation: the implication of terms in fact and the remoteness principle. Both doctrines have been commonly understood as exercises in gap filling, but in two influential judgments Lord Hoffmann sought to recast them as interpretative principles (Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988 and Transfield Shipping Inc v Mercator Shipping Inc (‘The Achilleas’) [2009] 1 AC 61). It will be argued that the implication of terms in fact can properly be regarded as an exercise in interpretation, but the same cannot be said of the remoteness doctrine. In their embrace of an interpretative approach to remoteness and rejection of an interpretative approach to interpretation, the English courts have backed the wrong horse.
Robertson, Andrew, The Limits of Interpretation in the Law of Contract (December 15, 2016). (2016) 47 Victoria University of Wellington Law Review 191-207.
First posted 2016-12-16 17:09:27
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