Category Archives: Interpretation
Thomas Keijser, ‘The rise of reasonableness in enforcement’
ABSTRACT This article examines the increasing reliance in international commercial law instruments on open standards such as commercial reasonableness and good faith in the context of the enforcement of secured transactions. Whereas limiting the role of independent third parties (such as courts or experts) in enforcement may have advantages in certain settings, the reliance on […]
Dagan and Gergen, ‘Autonomy, Implication, and Interpretation’
ABSTRACT This Article develops a liberal theory for one of the most discussed topics of contract law (its rules of interpretation) and one of the most neglected (implication). It considers these topics in tandem because they both address contractual obligations that ostensibly flow from the parties’ own choices. We reject the view which misrepresents the […]
Monika Leszczyńska, ‘The Egocentric Reasonable Person: Whose Norms Decide what is Reasonable in Contract Law?’
ABSTRACT When contract law invokes a reasonableness standard, whose standard applies – and what kind? Doctrine prescribes external benchmarks – industry custom, community expectations – rather than individual moral judgment. Two pre-registered experiments (N=2,342) test which benchmark laypeople apply across twenty-five contractual scenarios. Personal injunctive norms – what individuals believe one ought to do – […]
English and Winzer, ‘The interpretation of oral contracts’
INTRODUCTION ‘[O]ne of the most fundamental principles’ of English contract law is that the parties’ rights and obligations are determined objectively (the objectivity principle). Whether the parties have formed an agreement, what the terms of that agreement are, and whether they intended for it to be legally binding ‘depends not upon their subjective state of […]
Dana Roemling, ‘Statutory Interpretation and Corpus Evidence: Tensions Between Linguistic Reality and Legal Meaning’
ABSTRACT This paper examines how linguistic meaning interacts with legal interpretation for the statutory term child, focusing on the 2013 Alabama Supreme Court case Ex parte Ankrom. In that case, the court held that child includes unborn individuals under chemical endangerment laws, a decision that raises important questions about how ordinary meaning is established. Using […]
Ewan McKendrick, ‘Contracts, certainty and the Supreme Court’
ABSTRACT The aim of this article is to examine the importance attached by the United Kingdom (UK) Supreme Court to the promotion of legal certainty in English commercial contract law. It does so by examining three recent Supreme Court decisions in which considerations of certainty and predictability played an important role in deciding the outcome […]
David McLauchlan, ‘A Uniform Approach to Contract Formation and Interpretation’
ABSTRACT When we ask the questions ‘is there a contract?’ and, if so, ‘what does it mean?’, essentially the same principles apply in New Zealand as a result of the Supreme Court’s decision in Bathurst Resources Ltd v L&M Coal Holdings Ltd. This represents a departure from the law in other common law countries, notably […]
Susan Chesler, ‘Leveraging AI-Assisted Contract Drafting for Social Good’
ABSTRACT This article focuses on how contract drafters can – and should – use AI tools to assist them in drafting contracts that not only achieve the parties’ goals but can also be used for social good. While contracts are generally entered into by two discrete parties and private law has not traditionally been viewed […]
Marc Moore, ‘Contract interpretation and the employment relation: from commercial to industrial common sense?’
ABSTRACT The recent (2024) Supreme Court decision in Tesco Stores Ltd v Union of Shop, Distributive and Allied Workers has attracted interest from across the legal community. For labour lawyers, the case provides a valuable opportunity to interrogate the legality of the controversial ‘fire and rehire’ practices that have become a constant of the industrial […]
Jonathan Saunders, ‘A Normative and Pragmatic Argument for Textualism and Stability within the Law on Contractual Interpretation: a Critique of Sara and Hossein v Blacks [2023] UKSC 2′
ABSTRACT This article comments on the development of the case law within the sphere of contractual interpretation. It presents a normative argument for a more literalist approach that echoes Lord Neuberger’s restatement of the law in Arnold v Britton. The article uses, as a case study, the Supreme Court’s most recent judgment on contractual interpretation […]