Contractual Interpretation at Common Law and Civil Law : An Exercise in Comparative Legal Rhetoric

Abstract

The aim of this piece is to expose the different rhetorics (understood as “forms of argumentation”) that respectively run through contractual interpretation materials at French and English law, and show that they can be explained in terms of the fundamentally different conceptions of contractual intention that inform French and English contract law. On the French side, it is argued that subjective contractual interpretation accounts for the structure of the interpretation process, as well as the substance of the various code provisions pertaining to interpretation (dispositions imperatives and suppletives, the doctrine of good faith, the maxims of interpretation, “abusive” clauses, and evidentiary provisions). On the English side, objective contractual interpretation is related to the literalism/contextualism debate, the Parol Evidence rule, the doctrines of rectification, implied terms, and fundamental breach, as well as to the treatment of onerous clauses more generally, frustration, and certain elements of the law of remedies. At a higher level, this exercise aims to offer an example of “meaningful” comparative law scholarship.