Category Archives: Interpretation
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 […]
‘A Costly Drafting Mistake’
When I teach Conflict of Laws, I spend a lot of time showing my class how to draft a good choice-of-law clause. It’s not hard. Everything you need to know is laid out in the Primer on Choice-of-Law Clauses. Unfortunately, these instructions are not always followed. In one recent case, Pool Scouts Franchising LLC v […]
Rory Gregson, ‘The limits of implication’
INTRODUCTION Many areas of law give legal effect to the meaning of a communication. The law of contract gives effect to contractual agreements; the law of express trusts gives effect to manifestations of an intention to create a trust; the law of statutory interpretation gives effect to legislation. In all these areas, determining the meaning […]
James Phillips, ‘A Corpus Linguistic Analysis of “Possessions” in American English, 1760-1776’
ABSTRACT This article will proceed in four parts. Part I introduces the question at issue in the context of the first state constitution to include the term: the Pennsylvania Constitution. It does so, at least in part, because other state constitutions arguably copied the Pennsylvania Constitution, and thus the meaning of that constitution likely sheds […]
Ethan Leib, ‘Should Statutory Interpretation and Contract Interpretation Be Harmonized?’
ABSTRACT This paper develops four case studies about how states have harmonized or separated their statutory interpretation regimes and their contract interpretation regimes. After exploring the choices of Texas, Alaska, New York, and Alabama – all of which take different approaches to their lumping or splitting – the paper seeks to make state courts more […]
David Hoffman, ‘Consumers’ Unreasonable Textual Expectations’
ABSTRACT The Restatement of Consumer Contracts, at § 4(d), states that ‘standard contract terms are interpreted in a manner that effectuates the reasonable expectations of the consumer’. As the Reporters note, this language derives from the Restatement (Second) of Contracts § 211, itself largely pulled from the insurance context. As § 211 was until recently […]
Jonathan Chu, ‘The place of deemed fulfilment of condition’
EXTRACT Where, on the face of a contract, the existence of a debt is conditional on the occurrence of a particular fact, and that fact has not occurred, because the person who promised payment has prevented it from occurring, does the debt arise nevertheless on the notion that the condition is then to be deemed […]