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Common Intention and Contract Interpretation

Lloyd's Maritime and Commercial Law Quarterly, pp. 30-50, 2011

Victoria University of Wellington Legal Research Paper No. 6/2012

22 Pages Posted: 17 Jun 2011 Last revised: 5 Apr 2015

David McLauchlan

Victoria University of Wellington - Faculty of Law

Date Written: June 17, 2011

Abstract

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.

Keywords: contract, intention, interpretation

JEL Classification: K12

Suggested Citation

McLauchlan, David, Common Intention and Contract Interpretation (June 17, 2011). Lloyd's Maritime and Commercial Law Quarterly, pp. 30-50, 2011; Victoria University of Wellington Legal Research Paper No. 6/2012. Available at SSRN: https://ssrn.com/abstract=1866163 or http://dx.doi.org/10.2139/ssrn.1866163

David McLauchlan (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

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