Interpretation of Industry-Standard Contracts

• Autores: Aaron Taylor
• Localización: Lloyd's maritime and commercial law quarterly, ISSN 0306-2945, Nº. 2, 2017, págs. 261-285
• Idioma: inglés
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• Resumen

  • Standard-form contracts are at the heart of modern commerce, but are seldom given specific consideration in the literature on contractual interpretation. This paper considers the extent to which the general ICS principles of interpretation are applicable in this context. A central concern in interpreting standard forms is promoting commercial certainty. The court is not solely concerned with establishing the intention; of the parties or of the contract drafter, but should aim to engage in a dialogue with the contract-issuing body, in which market expectation and commercial sense play an especially important role. Most importantly, since a decision on interpretation has the potential adversely to affect third parties with ongoing contracts on materially identical terms, it is submitted that the court should decline to manipulate standard forms by interpreting them to suit the circumstances of the parties before it. Instead, rectification is the appropriate response to the parties’ subjective mistake in adopting a standard provision. Rectification would apply only to the particular contract before the court, leaving to the contract-issuing body the decision whether any amendment is required to the standard form itself. “The contract […] conforms to customary mercantile practice at least in the regrettably normal respects: first, that it is legible only by eyes with an acuity unlikely to be enjoyed by any individual possessing sufficient maturity of mind to understand it; secondly, that it is verbose, tautologous and obscure; thirdly, that by internal evidence, it has not been constructed, but merely thrown together as an amalgam of phrases, recklessly as well as fortuitously culled, with scant regard, it may be, for copyright, from other sets of trading conditions.”