The Construction of Contracts Interpretation, Implication and Rectification

by McMeel, Gerard

• ISBN13: 9780199277933
• ISBN10: 0199277931
• Format: Hardcover
• Copyright: 2007-09-27
• Publisher: Oxford University Press

Summary

This exciting new practitioner text provides a clear and comprehensive account of the legal principles and doctrines which come into play whenever the parties disagree about the meaning and effect of the contractual words. Most commercial transactions, from the supply of goods and services to the sale of a business, are reduced to writing. In most cases this entails that the deal is recorded in clear and certain terms for the parties to perform. Nevertheless written contracts are abundant with disputes about the meaning and effect of particular words and phrases. Although the common law principles and techniques of construction are of long ancestry, they have recently come to greater prominence as judges have self-consciously sought to modernize the approach to the interpretation of contractual instruments. The Construction of Contracts provides a new and refreshed account of the principles involved, focusing on the practitioner's 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 species of contractual provision, including warranties and indemnities, exemption clauses, "force majeure" clauses and "entire agreement" clauses.

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

The General Part

Principles and Policies

Theoretical and Comparative Perspectives

The Objective Principle of Construction

Internal Context: The Whole Contract Approach

External Context: Surrounding Circumstances, 'Matrix' and 'Parol Evidence'

Standard Form Contracts, Public Policy and the Realms of Strict Construction and Strict Compliance

Presumptions

Maxims

New Horizons: Good Faith, Contractual Discretions, and Human Rights

Related Doctrines

Implication by Law: General Default Rules

Implication in Fact: Ad hoc Gap-fillers

Custom and Usage

Technical and Legal Language

Formation and Certainty

Incorporation of Terms

Parties, Third Party Effects and Clauses Precluding Assignment

Rectification and Correcting Mistakes through Construction

Common Assumptions, Estoppel by Convention, Estoppel by Deed

Construction and Mistake as a Vitiating Factor

Particular Contractual Provisions

Conditions, Warranties, and Indemnities

Exemption Clauses

Change of Circumstances and 'Force Majeure' Clauses

Modification of Remedies: Express Termination, Liquidated Damages and No Set Off Clauses

The Integrity of the Instrument: 'Entire Agreement' and 'Non-reliance' Clauses

Rules Relating to Written Contracts

The Status of Instruments: Forgeries, Deliberate Alteration, Non est Factum, and Shams

Construction and Practice

Evidence: Documents, Originals and Copies

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