Interpreting Commercial Contracts (LAWS6903)
UNIT OF STUDY
Commercial lawyers spend much of their time reading and writing contracts. Understanding how the courts interpret contracts is therefore a key part of the job of any commercial lawyer. In practice, much of contract law is about the interpretation of the promises which the parties have made to each other rather than about particular rules of law. Over the last twenty years, the common law has seen an explosion in the number of cases on contractual interpretation, and a corresponding increase in its academic discussion. This unit will critically discuss those developments, with a view to trying to establish the principles by which the courts do - and should - interpret contracts. In doing so, it will discuss the developments in Australia, England and New Zealand. The unit will be structured around ten principles which, it is suggested, can help to explain the way in which the courts interpret contracts and the continuing divergences of view about the approach to interpretation. The following issues will be discussed: What is the guiding principle of contractual interpretation? To what extent do the courts look to the objective intention of the parties? Is subjective intention of any relevance? What materials are available when interpreting a contract? What is meant by reading the contract as a whole? Contracts must be read in the light of their background facts, but what does this mean in practice? What do words mean? Do words have ordinary meanings? When are words ambiguous? To what extent is the court entitled to disregard the words used by the parties if it thinks that they cannot have intended them? When can words be implied into a contract? When can the court change the words in a contract? When are rectification and estoppel by convention available? The unit will conclude with a discussion of the way in which contracts should be drafted. How should the principles of contractual interpretation affect drafting? Is it possible to contract out of the principles? Is it desirable to do so?
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Further unit of study information
Nov 21, 22 & 28, 29 (9-5)
1500wd essay (20%) and 6000wd essay (80%)
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