The Construction of Contracts

by McMeel, Gerard

• ISBN13: 9780199582488
• ISBN10: 0199582483
• Edition: 2nd
• Format: Hardcover
• Copyright: 2011-05-26
• Publisher: Oxford University Press

Summary

This new edition provides a clear and comprehensive account of the legal principles and doctrines that come into play whenever parties disagree about the meaning and effect of contractual words. It is particularly useful for solicitors and barristers litigating disputes in the fields of commercial, corporate, banking, financial services and property law. The common law principles and techniques of construction have recently come to greater prominence as judges seek to modernize the approach to the interpretation of contractual instruments. The Construction of Contracts provides a comprehensive account of the principles involved, focusing on the practitioners' needs, tackling modernization head on and equipping readers with the necessary means to avoid pitfalls in contractual provisions. The coverage extends to related rules and doctrines, including rectification and implication of terms, and consideration of the status of the controversial 'parol evidence rule.' The book also considers the nature of effect of particular types of contractual provision, including warranties and indemnities, exemption clauses, force majeure clauses and entire agreement clauses. Content new to this edition includes coverage of additional clauses such as retention of title, arbitration, choice of law and jurisdiction, as well as an examination of the relationship between the rules for the interpretation of contracts and other juridical uses of interpretation such as statutory interpretation, construction of memorandum and articles of association, construction of wills, and patents.

Author Biography

Gerard McMeel is Professor of Law at the University of Bristol and writes widely on contract law and commercial and financial legal matters. He is a graduate of Brasenose College, Oxford University. Gerard is a barrister at Guildhall Chambers in Bristol and specializes in both commercial and financial disputes. He is also a Door Tenant of Quadrant Chambers, a leading commercial set in London. Gerard combines an academic interest in commercial and financial law with an active private practice in the field. This work on contractual interpretation proceeds from earlier work in the field, and is in part the result of lecturing on the subject to lawyers across England and Wales.

Table of Contents

I THE GENERAL PART
1. Principles and Policies
2. Theoretical and Comparative Perspectives
3. The Objective Principle of Construction
4. Internal Context: The Whole Contract Approach
5. External Context: Surrounding Circumstances, 'Matrix', and 'Parol Evidence'
6. Standard Form Contracts, Public Policy, and the Realms of Strict Construction and Strict Compliance
7. Presumptions
8. Maxims
9. New Horizons: Good Faith, Contractual Discretions, and Human Rights
II RELATED DOCTRINES
10. Implication by Law: General Default Rules
11. Implication in Fact: Ad Hoc Gap-fillers
12. Custom and Usage
13. Technical and Legal Language
14. Formation and Certainty
15. Incorporation of Terms
16. Parties, Third Party Effects, and Clauses Precluding Assignment
17. Rectification and Correcting Mistakes through Construction
18. Common Assumptions, Estoppel by Convention, and Estoppel by Deed
19. Construction and Mistake as a Vitiating Factor
III PARTICULAR CONTRACTUAL PROVISIONS
20. Conditions, Warranties, and Indemnities
21. Exemption Clauses and Unfair Contract Terms
22. Change of Circumstances and 'Force Majeure' Clauses
23. Modification of Remedies: Express Termination, Retention of Title and No Set-off Clauses
24. Payment: Penalties, Liquidated Damages and Acceleration Clauses
25. Time Stipulations
26. The Integrity of the Instrument: 'Entire Agreement' and 'Non-reliance' Clauses
27. Dispute Resolution: Arbitration, Choice of Law and Choice of Jurisdiction
IV RULES RELATING TO WRITTEN CONTRACTS
28. The Status of Instruments: Forgeries, Deliberate Alteration, Non est factum, and Shams
V CONSTRUCTION AND PRACTICE
29. Evidence: Documents, Originals, and Copies