Contractual Interpretation at Common Law and Civil Law: An Exercise in Comparative Legal Rhetoric

EXPLORING CONTRACT LAW, J. Neyers, ed., Hart Publisher, 2008

38 Pages Posted: 12 May 2008

See all articles by Catherine Valcke

Catherine Valcke

University of Toronto - Faculty of Law

Abstract

The aim of this piece is to expose the different rhetorics (understood as “forms of argumentation”) that respectively run through contractual interpretation materials at French and English law, and show that they can be explained in terms of the fundamentally different conceptions of contractual intention that inform French and English contract law. On the French side, it is argued that subjective contractual interpretation accounts for the structure of the interpretation process, as well as the substance of the various code provisions pertaining to interpretation (dispositions imperatives and suppletives, the doctrine of good faith, the maxims of interpretation, “abusive” clauses, and evidentiary provisions). On the English side, objective contractual interpretation is related to the literalism/contextualism debate, the Parol Evidence rule, the doctrines of rectification, implied terms, and fundamental breach, as well as to the treatment of onerous clauses more generally, frustration, and certain elements of the law of remedies. At a higher level, this exercise aims to offer an example of “meaningful” comparative law scholarship.

Suggested Citation

Valcke, Catherine, Contractual Interpretation at Common Law and Civil Law: An Exercise in Comparative Legal Rhetoric. EXPLORING CONTRACT LAW, J. Neyers, ed., Hart Publisher, 2008, Available at SSRN: https://ssrn.com/abstract=1132364

Catherine Valcke (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
514-343-6111 Ext. 4094 (Phone)

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