A Note on Contract Paleontology

Abstract

Standard financial and commercial contracts are organic things; they evolve and adapt over time in response to a variety of influences. The meaning of any particular contractual provision, however, is a question of what the parties intended at the time they signed the contract. Occasionally, that meaning can only be determined by reference to the historical context in which a standard contractual provision took shape -- requiring an exercise in "contractual paleontology". Like the fossil record for the paleontologist, the documentary record for standard contracts is often fragmentary and inconsistent. The historian is thus left to work out whether mutations in the drafting of the clause over time were intentional adaptations to changed circumstances or market understandings, or whether they were the product of the ignorance, inexperience or even fatigue of the drafter.