Category Archives: Interpretation
Erik Knutsen, ‘The Insurance Policy: Contract or Not? (And Why That Matters for Insurance Coverage Cases)’
ABSTRACT Common law courts in Canada should make up their mind: are insurance policies to be treated as contracts or as something else? Litigants in many insurance coverage disputes may actually be better off if the special insurance policy interpretation framework as currently employed by Canadian courts were jettisoned, and courts instead interpreted insurance policies […]
Anuj Desai, ‘Textualism Step Zero: Who is the Reader of Statutory Text?’
ABSTRACT Textualists argue that judges should interpret statutes based on how a reasonable reader would understand the statutory text, not on the legislature’s subjective intent. But who is that reasonable reader? The answer matters: the reader’s identity should properly determine the available interpretive tools an interpreter may use. This Article introduces the concept of Textualism […]
Ryan Catterwell, ‘The Application of Contracts’
ABSTRACT The application of a contract involves ascertaining whether the components of a contract term are met on the facts. It is a matter of categorisation or classification. There are at least three methods of categorisation: by criteria; by factor-balancing; and by analogy. The process of application is distinct from the processes that are engaged […]
Knutsen and Stempel, ‘Textual Literalism, Formalism, and Canon-Centric Construction as De Facto – and Defective – Artificial Intelligence’
ABSTRACT Human use of machine-driven artificial intelligence (AI) has attracted deserved attention. But at the same time, scholars studying the impact of AI have largely overlooked the degree to which humans themselves frequently engage in robotic analysis of legal disputes that can operate in the nature of a failed algorithm. The heavy, sometimes determinative, use […]
Seth, Hasit, ‘Interpreting Exclusion Clauses for Loss of Profits in Contracts’
ABSTRACT In February 2025, the English Court of Appeals handed down the judgment in the case EE Limited v Virgin Mobile Telecoms Limited [2025] EWCA Civ 70. The judgment illustrates the challenges of interpreting exclusion clauses in contracts, particularly the exclusion clauses for loss of profit claims when they are termed as ‘anticipated profits’. The […]
Dylan Clarke, ‘An Economic Approach to Interpretation’
ABSTRACT This Essay develops an economic approach to statutory and contractual interpretation. The economic approach to interpretation understands ‘things’ as inherently economic objects that drafters intend to specify to include close-to-perfect substitutes or similar fairly priced items by the market. Several difficult cases involving exclusivity clauses, the exchange of land, and options contracts are resolved […]
Ghodoosi and Kastner, ‘Against the Drafter: An Empirical and Theoretical Analysis of the Doctrine of Contra Proferentem’
ABSTRACT Contra proferentem, the enduring maxim that directs courts to construe an ambiguity in a contract against its drafter, appears simple on its face. Although it might be best known as a fundamental principle of insurance law, contra proferentem figures in courts’ interpretation of a range of contract types. As an interpretive rule of thumb […]
West and Gulati, ‘The Time-Is-Of-The-Essence Clause In M&A Agreements’
ABSTRACT Delaware courts take pride in their ‘contractarianism’. Words matter, and Delaware courts enforce both good and bad contracts. However, in a recent decision, the Delaware Supreme Court ruled that an express condition precedent for triggering a seller’s indemnity obligation-that the buyer provide a compliant notice of claims before a specific date-could potentially be excused […]
‘When life gives you oranges, try to find an implied term’
The court implied a term into a contract for the supply of orange pulp that, in the absence of agreement between the parties, the price was to be fixed at a reasonable or market price. KSY and Citrosuco entered a contract in 2018 under which KSY agreed to supply 1,200 metric tonnes of orange pulp […]
Kastner and Ghodoosi, ‘An Empirical and Theoretical Analysis of the Doctrine of Contra Proferentem’
ABSTRACT Contra proferentem, the enduring maxim that directs courts to construe an ambiguity in a contract against its drafter, appears simple on its face. Although it might be best known as a fundamental principle of insurance law, contra proferentem figures in courts’ interpretation of a range of contract types. As an interpretive rule of thumb […]