Category Archives: Interpretation
Gregory Klass, ‘A Short History of the Interpretation-Construction Distinction’
ABSTRACT This document collects for ease of access and citation three of my posts on the New Private Law Blog, which chart the conceptual history of the interpretation-construction distinction. The posts begin with Francis Lieber’s 1939 introduction of the concepts, then describes Samuel Williston’s 1920 account of the distinction in the first edition of Williston […]
Olli Norros, ‘On the Application of the Rule of Ambiguity in Business Contracts’
ABSTRACT The overriding objective in contract interpretation under Finnish law is to identify the common intent of the parties concerned. However, if the common intention of the parties cannot be traced and it is difficult to find subjective understandings of either party as being better reasoned than those of the opposing party, a secondary set […]
Marc Moore, ‘Commercial Common Sense in Contract Interpretation: A Legal Realist Analysis’
ABSTRACT The forthcoming UK Supreme Court decision in Union of Shop, Distributive and Allied Workers (‘USDAW’) v Tesco Stores is eagerly awaited throughout 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 relations […]
Christopher Drahozal, ‘Third-Party Boilerplate Providers and Contractual Black Holes’
ABSTRACT This paper considers how the theory of contractual black holes – as developed by Stephen J Choi, Mitu Gulati, and Robert E Scott – might apply to boilerplate contract terms from third-party boilerplate providers. Third-party boilerplate providers, such as trade associations and form sellers, are more likely to be not-for-profit entities and provide industry-standard […]
Nick Sage, ‘Reconciling Contract Law’s Objective and Subjective Standards’
ABSTRACT Although the common law of contract is often said to favour ‘objectivity’, it sometimes seems to adopt a ‘subjective’ standard. The apparent tendency to switch between rival standards troubles many contract scholars. In response, some seek to vindicate objectivity alone as the one true standard. Others propose a single abstract theoretical rationale that can […]
‘Towards the End of Normative Interpretation of Contracts’
David A Hoffman and Yonathan A Arbel, ‘Generative Interpretation’, 99 New York University Law Review (forthcoming, 2024); University of Pennsylvania Law School, Public Law Research Paper, available at SSRN (1 August 2023). The plain meaning rule is out of favor with contracts academia. There is so little to say about it, nothing to theorize, and […]
Crafa, Laneve, Sartor and Veschetti, ‘Pacta sunt servanda: Legal contracts in Stipula’
ABSTRACT We present Stipula, a domain specific language that may assist legal practitioners in programming legal contracts through specific patterns. The language is based on a small set of programming abstractions that correspond to common patterns in legal contracts. We illustrate the language by means of two paradigmatic legal contracts: a bike rental and a […]
Baumgartner and Kneer, ‘The Meaning of “Reasonable”: Evidence From a Corpus-Linguistic Study’
ABSTRACT The reasonable person standard is key to both Criminal Law and Torts. What does and does not count as reasonable behavior and decision-making is frequently determined by lay jurors. Hence, laypeople’s understanding of the term must be considered, especially whether they use it predominately in an evaluative fashion. In this corpus study based on […]
Hoffman and Arbel, ‘Generative Interpretation’
ABSTRACT We introduce generative interpretation, a new approach to estimating contractual meaning using large language models. As AI triumphalism is the order of the day, we proceed by way of grounded case studies, each illustrating the capabilities of these novel tools in distinct ways. Taking well-known contracts opinions, and sourcing the actual agreements that they […]
Arbel and Becher, ‘How Smart are Smart Readers? LLMs and the Future of the No-Reading Problem’
ABSTRACT Large Language Models (LLMs) can be used to summarize and simplify complex texts. In this study, we investigate the extent to which state-of-the-art models can reliably operate as ‘smart readers’: applications that empower consumers to tackle lengthy, difficult-to-read, and inaccessible standard form contracts and privacy policies. Our analysis reveals that smart readers (1) reduce […]