Interpretation of Contracts: 2nd Edition (Hardback) book cover

Interpretation of Contracts

2nd Edition

By Catherine Mitchell

Routledge-Cavendish

194 pages

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Hardback: 9781138789722
pub: 2018-08-15
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Description

This book is a second edition of Interpretation of Contracts (2007).

The original work examined various issues surrounding the question of how contracts should be interpreted by courts, in particular focusing on the law of contract interpretation following Lord Hoffmann’s exposition of the principles of contextual interpretation in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896. As with the original, this new edition provides an overview of the subject, concentrating on elements of controversy and disagreement, rather than a detailed analysis of all the contract law rules and doctrines that might be regarded as interpretative in one sense or another. The book will be concerned with interpretation of contracts generally (following the rule that there are not different rules of interpretation for different kinds of contracts), but with reference to commercial contracts in particular, since this is the area in which the contextual interpretative approach was developed, and where it has most relevance.

The overall aim of the second edition remains the same as the first – to produce an accessible and readable guide to contract interpretation for law students, scholars and practitioners.

Table of Contents

Table of Contents

Table of cases

Preface to first edition

Preface to second edition

Chapter 1 The Nature of Contract Interpretation

Introduction

What is interpretation?

A general theory of interpretation?

Interpretation and meaning

Context and interpretation

What is a contract?

Interpretation and contractual power

The range of interpretation problems

Why do contractual interpretation disputes exist?

Foundations of contract interpretation

Conclusion

Chapter 2 The Rise (and Fall?) of Contextual Interpretation

Literalism and rules in contracts interpretation

The contextualist shift

Lord Hoffmann’s restatement

Implications of Lord Hoffmann’s contextualism

The meaning communicated to a reasonable person

No need for ambiguity before examining the background

Mistakes can be corrected by contextual interpretation

The role of business common sense

Contextualism subsumes literalism

Contextual interpretation subsumes doctrine

Contextual interpretation in context

Accessing the ‘real’ agreement

Interdisciplinarity in law

Conclusion

Chapter 3 Divisions and Disputes in Contract Interpretation

Retreating from contextualism

Arnold v Britton

The role of ambiguity

What the words say/what the language communicates

Identifying the relevant context

Commercial reasonableness after Arnold v Britton

Reasonable person or pedantic lawyer?

The limitations on the contract background

Common intentions of the parties

Admissibility of prior negotiations

Subjectivity

Costs

Helpfulness, relevance and the legal framework

Should the rule be reformed?

Subsequent conduct

The retreat from contextualism in context

Contract complexity

Maintaining competitive edge

Waning European influence

Conclusion

Chapter 4 The Scope of Contract Interpretation

Interpretation or something else?

Interpretation and implied terms

A-G of Belize v Belize Telecom

Connections and disconnections between interpretation

and implication

What turns on the division between implication and

interpretation?

Interpretation and construction

Interpretation and rectification

Conclusion

Chapter 5 Formalism and Contract Interpretation

Indications of formalism in English contract law

Form and interpretation

The rise of neo-formalism

Neo-formalism: empirical, theoretical or pragmatic?

Empirically defended formalism

Theoretically defended formalism

Pragmatically defended formalism

The preference for formalism and textualism

The costs of contextualism

Judicial error

Flexible norms vs legal norms

The existence of contextual materials

Conclusion

Chapter 6 Controlling Contract Interpretation

General considerations

Courts, not the parties, interpret contracts

The limits of formalism

Choosing between formalist or contextualist contracting

strategies

Formalist interpretation of contractual standards

Contracting for textualism

Entire agreement clauses (EACs)

Should an EAC influence interpretation?

Resurrecting the parol evidence rule

Identifying and interpreting obligations

Evading the EAC

The impossibility of dispensing with context

Conclusion

Bibliography

Index

About the Author

Catherine Mitchell is a Reader in Private Law at Birmingham Law School, University of Birmingham. She has published widely on contract law issues in the UK and internationally.

Subject Categories

BISAC Subject Codes/Headings:
LAW021000
LAW / Contracts
LAW087000
LAW / Torts