Phinate Chona v ZESCO Limited CAZ Appeal No. 66/2019

English courts had not received a more appropriate and comprehensive approach to contractual interpretation than the five principles introduced by Lord Hoffmann. Investors Compensation Scheme Ltd v West Bromwich Building Society Ltd is considered one of the most significant cases within English contract law as Lord Hoffmann’s ratio decidendi is regarded as having moved the courts away from a textualist approach towards a contextualist approach.

Edinburgh Law Review, 2011

of the breadth of the context or conduct which can be referred to in the interpretative exercise (3) Whether consideration of anything beyond the words of the contract alone is only permissible in cases of "ambiguity" (4) The position of third parties (5) The use of maxims or rules of interpretation (6) The permissibility and function of so-called "entire contract clauses" (7) Other issues D. THE WAY FORWARD FOR LAW REFORM 406 Vol 15 2011 reform of contractual interpretation 407 the edinburgh law review Vol 15 2011 issues (making some suggestions for law reform on some of them) and sought the views of interested parties on them. C. THE FUNDAMENTAL ISSUES RAISED IN THE DISCUSSION PAPER the edinburgh law review Vol 15 2011 interpretation of contracts. Such an approach recognises the public as well as private aspect of contracts, is consistent with the use of the shared medium which is human language, and would minimise the temptation which some courts have unfortunately shown to seek to improve upon the bargains reached by the parties in the name of commercial good sense.

2007

Social Science Research Network, 2015

The judgments of English courts regularly state that the principles governing contract interpretation are well established. On the surface this seems correct, particularly in view of the frequent endorsement of Lord Hoffmann's restatement of the fundamental principles of interpretation in the Investors Compensation case. However, this article argues that closer scrutiny reveals a different picture. The principles are now being questioned, or not applied as Lord Hoffmann intended, and in other respects the law is uncertain. Recent developments suggest that what Lord Steyn once described as the "shift towards commercial interpretation" has been halted, or at least curtailed. In other words, they are indicative of a desire to return to a more conservative approach to contract interpretation under which disputes should be resolved primarily on the basis of textual analysis with limited resort to external context, including considerations of commercial common sense. The author concludes by suggesting a principled way out of some of the current confusion and uncertainty that does not entail abandoning Lord Hoffmann's principles and turning the clock back to a plain meaning rule under which ordinarily the only escape from a fi nding that the language of the contract is unambiguous is a ruling that absurd consequences will result.

2019

Contract interpretation is an understudied topic in the economic analysis of contract law. This Article combines simple formal analysis of the tradeoffs involved in interpretation with applications to the principal doctrines of contract interpretation, including the 'four corners" rule, mutual mistake, contra proferentum, and what I call the (informal but very important) rule of "extrinsic nonevidence. " Gap filling is distinguished, and the relativity of interpretive doctrines to the interpretive medium-jurors, arbitrators, and judges in different kinds ofjudicial systems-is emphasized.

1981

This article considers the most appropriate principles for analysing commercial contracts when justifying non-performance. The author highlights the importance of mercantile autonomy, the evolution of exceptions to the rule against non-performance, and the extent to which judges employ a cautious or bold approach to construing contractual obligations in circumstances of non-performance. In considering various judicial methods of construction, including an approach based on a general notion of justice, a rule oriented approach, the insertion of implied terms and a willingness to fill gaps, the author concludes that no one method can satisfy every mercantile situation, and no single contract law may govern. He suggests reform that embraces all approaches and requires balancing the nature of the contract, the type of parties involved, their mutual dealings and their common business practices.

Social Science Research Network, 2009

In recent times contract interpretation has become one of the most contentious areas of the law of contract. There are fundamental divisions among commentators, practitioners and judges (often writing extrajudicially) as to the nature of the task and the permissible aids to interpretation. This article highlights the reasons for these divisions and suggests that the position of those who advocate a liberal approach to the latter issue is sometimes misunderstood. The author argues that there are no convincing reasons of principle, policy or convenience for refusing to receive evidence of prior negotiations and subsequent conduct: in particular, admitting such evidence is not, as commonly thought, inconsistent with the objective approach to interpretation. However, at the same time it is stressed that it will only be in relatively exceptional cases that the evidence will provide a helpful or reliable guide to the true intention of the parties.

2014 De Jure 363

In South Africa over the the past five years, the Supreme Court of Appeal, beginning with the landmark ruling of Harms DP in KPMG Chartered Accountants (SA) v Securefin Ltd [2009] 2 All SA 523 (SCA) par 39), has begun to unravel the web of mystery surrounding the admissibility of evidence that may be used in the interpretation of contracts. The case of Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd 2013 6 SA 520 (SCA) is the latest case in which the Supreme Court of Appeal has now given further clarity on the rules relating to the admissibility of evidence to assist with the interpretation of contracts. If there was any doubt after KPMG that the Supreme Court of Appeal intended to amend the existing law on the admissibility of extrinsic evidence in the interpretation of contracts, that doubt has now been completely dispelled. The judgment in Dexgroup makes it patently clear that extrinsic evidence to prove the meaning of the words, expressions, sentences and terms that constitute the contract, is admissible from the outset irrespective of whether there is any uncertainty or ambiguity in the text – as long as the evidence concerned points to a meaning which the text can reasonably have and the evidence is relevant to prove the common intention of the parties. But the judgment also makes it clear that the starting point is the language of the document and the parol evidence rule still prevents evidence to add to, detract from or modify the words contained in the document.