Contra Proferentem and the Role of the Jury in Contract Interpretation

19 Pages Posted: 29 Oct 2014 Last revised: 1 Nov 2015

See all articles by Ethan J. Leib

Ethan J. Leib

Fordham University School of Law

Steven Thel

Fordham University School of Law

Date Written: October 27, 2014

Abstract

Revisiting Bill Whitford’s work on the role of the jury in contract interpretation and his work on consumer form contracting inspired us to take a careful look at a doctrine of contract interpretation that is usually thought to help consumers in interpretive battles with those who draft their contracts unilaterally. But we found that contra proferentem -- the canon that requires construing or interpreting a contract against the drafter when ambiguities arise -- is more confusing than we expected. What we have done here is lay out some of the complexities of the doctrine, focusing on its broader application outside insurance law, its exceptions and limitations, the difficulty of knowing whether it is a rule for the judge or the jury to apply, the various forms the rule can take, and the difficulty of knowing whether it is a default or mandatory rule. We hope laying out these complexities here helps courts and commentators in the future achieve more consistency and nuance in their applications and discussions of this commonly known but little understood principle of contract interpretation.

Keywords: contra proferentem, contract interpretation, consumer contracts

Suggested Citation

Leib, Ethan J. and Thel, Steven, Contra Proferentem and the Role of the Jury in Contract Interpretation (October 27, 2014). 87 Temple Law Review 771 (2015) ; Fordham Law Legal Studies Research Paper No. 2515483. Available at SSRN: https://ssrn.com/abstract=2515483

Ethan J. Leib (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States

Steven Thel

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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