Common Intention and Contract Interpretation
Victoria University of Wellington - Faculty of Law
June 17, 2011
Lloyd's Maritime and Commercial Law Quarterly, pp. 30-50, 2011
Victoria University of Wellington Legal Research Paper No. 6/2012
This article challenges the orthodox view that, in adjudicating upon contract interpretation disputes, the task of the courts is to determine the parties’ presumed intention and that evidence of the parties’ actual mutual intention, usually to be found in their communications in the course of negotiating the contract, is irrelevant and inadmissible as an aid to interpretation. It is argued that, in any event, little of substance is left in the rule excluding evidence of prior negotiations once it is accepted that such evidence is admissible to prove that relevant background facts were known to the parties and that the safety devices of rectification and estoppel are alternative means of enforcing an agreed meaning. The courts are highly unlikely nowadays to give a meaning to contractual terms that is inconsistent with a clearly proven consensus of the parties.
Number of Pages in PDF File: 22
Keywords: contract, intention, interpretation
JEL Classification: K12Accepted Paper Series
Date posted: June 17, 2011 ; Last revised: January 16, 2012
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