THE SIGNIFICANCE OF COMPARING THE INTERPRETATION OF CONTRACTS

Questions of interpretation are an integral feature of the law. This holds true in relation to the principles, rules, standards and conventions that coalesce to form discrete legal disciplines such as contract law. The observation is equally valid in the case of express contractual terms which are drawn up by contracting parties in written contracts.

Questions of contract interpretation will arise by dint of the fact that – as economists have shown – written contracts are naturally incomplete by design, in the sense that no matter how conscientious the contracting parties are in terms of negotiating and fixing the necessary detail in draft ing its provisions, there inevitably will be gaps in the instrument. A written contract will lack coverage of all the contingencies and eventualities which may arise during the course of the contract, due to the limited foreseeability of such contingencies at the point of formation. Party autonomy also implies the interpretation of contractual language. The judicial enforcement of contracts cannot avoid interpretation of the language expressed by the parties in their contract. In fact, few contractual disputes would not also include questions of the meaning, import or legal effect of contractual terms.

From time to time, the idea of including a project on the interpretation of contracts had been brought up during the ‘Common Core’ Project's annual plenary meetings. This recurring interest is a testament to the significance of interpretation in the field of contract law. The authors believed that a project on contractual interpretation would be an ideal addition to the numerous comparative studies and books published to date under the banner of the Common Core Project. The Common Core website and further books provide explanations and reflections on the distinctive ‘Common Core’ method. In essence, the Common Core comparative methodology involves a number of steps. First, carefully craft ed hypothetical cases on a given topic are produced. Second, national reporters are asked to describe how the various questions posed in these cases would be approached (rather than resolved) in their legal system.