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This exciting new practitioner-orientated 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 of 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 modernise the approach to the interpretation of contractual instruments. This work provides a new and refreshed account of the principles involved, focusing on the practitioner's needs, tackling modernisation 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' claus.
- Equips readers with a comprehensive account of doctrinal and practical matters relating to written contracts
- Offers guidance on the current approach and trends of courts and tribunals
- This work contains full references to all relevant case law and journal articles which can be used for detailed argument
- Author provides practical insight on the pitfalls related to negotiating and drafting commercial contracts
- Tackles problem issues relating to specific types of clauses including warranties and indemnities, exception clauses, force majeure, express termination, retention of title, variation, waiver and choice of law
- Contracts from a variety of commercial contexts are covered such as international trade, carriage of goods, supply of goods and services, landlord and tenant and financial services
- Contains full references to all relevant case law and journal articles which can be used for detailed argument
PART 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 Realm of Strict Construction 7. Presumptions 8. Maxims 9. New Horizons: Good Faith, Contractual Discretions and Human Rights PART 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 Visiting Factor PART III: PARTICULAR CONTRACTUAL PROVISIONS; 20. Conditions, Warranties and Indemnities 21. Exemption Clauses 22. Change of Circumstances and 'Force Majeure' Clauses 23. Modification of Remedies: Express Termination, Liquidated Damages and No Set Off Clauses 24. The Integrity of the Instrument: 'Entire Agreement' and 'Non-reliance' Clauses PART IV: RULES RELATING TO WRITTEN CONTRACTS; 25. The Status of Instruments: Forgeries, Deliberate Alteration, Non est Factum PART V: CONSTRUCTION AND PRACTICE; 26. Evidence: Documents, Originals and Copies ;
