Contract Meta-Interpretation

51 Pages Posted: 15 Jan 2016 Last revised: 3 Feb 2016

See all articles by Shawn Bayern

Shawn Bayern

Florida State University - College of Law

Date Written: January 13, 2016

Abstract

This Article provides a general framework for resolving the contract law’s ambivalence between textualism and contextualism, one of the most difficult questions in modern contract interpretation. Simply put, the Article’s argument is that courts need to determine the parties’ preferences as to how their contracts should be interpreted; this “meta-interpretive” inquiry can then direct the court’s interpretation or construction of the parties’ substantive rights and duties. Moreover, the Article argues that while contextualist interpretation is not, and should not be, mandatory for all interpretive questions under contract law, contextualism is necessary to resolve the initial “meta-interpretive” question: What interpretive regime do the parties prefer? Recognizing this distinction, and applying this two-step inquiry, can resolve some of the academic and practical debates between textualists and contextualists, and it can also explain some features of modern contract law.

Keywords: contract, interpretation

JEL Classification: K12

Suggested Citation

Bayern, Shawn J., Contract Meta-Interpretation (January 13, 2016). UC Davis Law Review, Vol. 49, p. 1097, 2016, FSU College of Law, Public Law Research Paper No. 785, FSU College of Law, Law, Business & Economics Paper No. 16-3, Available at SSRN: https://ssrn.com/abstract=2715026

Shawn J. Bayern (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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