The Construction of Commercial Contracts
This book adopts a principled approach to the law applied in the construction of commercial contracts. This approach is presented as part of a coherent theory of the law of contract construction which makes a unique contribution to scholarship and understanding of the most important aspect of the practice of commercial lawyers.
The law is explained by reference to three stages in construction. It distinguishes the preliminary stage in which context is established, from the 'meaning' and 'application' stages of contract construction. The approach provides insights both into the practical problems that lawyers face, in particular in relation to admissibility of extrinsic evidence, and the theoretical underpinnings of the subject. The book also explains the relationship between intention and construction, and discusses general and specific rules that determine the results of construction disputes.
Each chapter is introduced by statements of its objectives and the book includes simple definitions of key concepts, as well as summaries of the complex principles which comprise the law of construction.
In illustrating construction principles and their application, the exposition of the law draws on the author's knowledge of Australian contract law and the influence and role of the UNIDROIT principles, CISG and the American Restatement (Second) Contracts.
Table of Cases xi
Table of Statutes lvii
PART I — INTRODUCTION
1. What Is Construction? 3
PART II — CONSTRUCTION, INTENTION AND IMPLICATION
2. Construction and Intention 41
3. Construction and Implication 79
PART III — RULES AND PRINCIPLES HAVING GENERAL APPLICATION
4. General and Specific Construction Rules 115
5. The ICS Principles 153
PART IV — CONTEXT OF THE CONTRACT
6. Role of Context 179
7. Scope of Context 209
PART V — THE EXCLUSIONARY RULE
8. Categories of Extrinsic Evidence 245
9. Scope of the Exclusionary Rule 277
10. Contracts Integrated in Documents 317
PART VI — MEANING OF THE CONTRACT
11. Meaning and Legal Effect 357
12. Standards of Interpretation 389
13. Choice of Meaning 421
14. Evidence in Aid of Construction 461
PART VII — APPLICATION OF THE CONTRACT
15. Standards for Applying Contracts 493
16. Commercial Application 531
17. Exclusion and Limitation Clauses 569
18. Evidence in Application 603