Contractual interpretation: Difference between revisions
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Revision as of 14:20, 3 November 2020
}When the young legal is confronted with an instrument, whether statutory or contractual, she must bring with her some keys, codexes, tools and techniques. She will need these to extract from a morass of impenetrable verbiage an optimal course of action for her client. These we now call the canons of interpretation. They originated in the parsing of statutes, but they were so useful even commercial lawyers desirous of getting out the door before closing time soon glommed on to the fact that the same rules of engagement ought to apply to private as well as public charters of action.
So they were born.
The ejusdem generis rule of statutory interpretation — which we contract hacks like when it suits us to extend by analogy into contractual interpretation — says wherever general words follow specific words, the general words should be read to include only objects similar in nature to those specific words.
So, “any uprising, riot, looting, organised disobedience or other civil commotion” would not include “ironic flash-mob performances of songs from The Sound of Music, however tiresome or poorly organised”, as long as not specifically violent in aspect (of course, there is every chance that passers-by would become spontaneously violent upon being confronted by an ironic flash mob). “We are known by the company we keep”: as true of our words as it is of our confederates, the canon of interpretation “noscitur a sociis” counsels that, in case of ambiguity one should not break glass but be guided by the surrounding context when assigning meanings to sentences. Proof, if anyone needed it, that legal eagles don’t need post-structuralist French philosophers to tell them how to play hermeneutical games.
Context is everything: if you are writing about pickles, conserves and chutneys, do not think you can slip in an oblique reference to lunar exploration and expect it to be understood.
A Latinism that dates back at least to 1884, if not necessarily all the way to Ovid, Caesar and Virgil, the canon of interpretation “generalia specialibus non derogant” holds that a later, but more general, statutory provision does not override an earlier, more specific one, unless the later one goes out of its way to say so. The Earl of Selbourne LC, in Seward v The Vera Cruz (1884) 10AC 59 put it this way:
- “Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any evidence of a particular intention to do so.”
Lawmakers — and contractual counterparties updating relationship contracts — should be explicit if they intend to squish an earlier agreement.
See also
- Statutory interpretation
- Contractual interpretation
- Ejusdem generis
- Noscitur a sociis
- Generalia specialibus non derogant
- Fair, large and liberal
- And the JC’s own short-hand to the lot of them: non mentula esse