Lord Sumption: “The first and main point to make is that the language of the parties’ agreement, read as a whole, is the only direct evidence of their intentions which is admissible. I would certainly not advocate literalism as an approach to construction. But it is a fallacy to say that language is meaningful only in relation to some particular background. Most language and all properly drafted language has an autonomous meaning. I find the belittling of dictionaries and grammars as tools of interpretation to be rather extraordinary. Language is a mode of communication. Its efficacy depends on the acceptance of a number of conventions that enable people to understand each other. Dictionaries and grammars are simply reference books which record these conventions. If we abandon them as the basic tools of construction, we are no longer discovering how the parties understood each other. We are simply leaving judges to reconstruct an ideal contract which the parties might have been wiser to make, but never actually did.”

 

Scalia J lives!

 

(For anyone who cares, P A Rubin, ‘War of the Words: How Courts Can Use Dictionaries in Accordance with Textualist Principles’ (2010) 60 Duke LJ 167 provides a reasonable enough overview)

 

[I’m clearly awaiting an influx of exam scripts, which no doubt will provide novel and amusing interpretations and applications of the contractual interpretation case-law]

 

Yours,
Sean.

Dr Sean Thomas
Associate Professor and Undergraduate Admissions Officer
Durham Law School
Durham University
Palatine Centre
Stockton Road
Durham DH1 3LE

e: sean.thomas@dur.ac.uk
t: +44 (0)191 3346849
w: https://www.dur.ac.uk/law/staff/?id=14090