Abstract:
Contract interpretation remains the most important source of commercial litigation and the most contentious area of contemporary contract doctrine and scholarship. Two polar positions have competed for dominance in contract interpretation. In a textualist regime, generalist courts cannot consider context; in a contextualist regime, they must. Underlying this dispute are contrary assumptions about the prototypical contract each interpretive style addresses. For modern textualists, contracts are bespoke, between legally sophisticated parties who embed as much or as little of the contractual context as they wish in an integrated writing and prefer to protect their choices against judicial interference by an interpretive regime including the parol evidence and plain meaning rules. For contextualists, in contrast, contracts are between legally unsophisticated parties in two prototypical settings … (more)
Ronald J Gilson, Charles F Sabel and Robert E Scott, ‘Text and Context: Contract Interpretation as Contract Design’. Cornell Law Review Volume 100 Issue 1.
First posted 2014-12-01 12:57:16
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