Download Interpretation in the Draft Common Frame of Reference

Interpretation in the Draft
Common Frame of
Reference
Kåre Lilleholt, University of Oslo
FACULTY OF LAW, UNIVERSITY OF OSLO
Interpretation of contracts
• DCFR Book II Chapter 8
– contracts
– other juridical acts
• Also Chapter 9 on “contents and
effects”
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Comparisons
• Italian law
• English law
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Intention and interpretation
• Contract: intention to create legal
effects
• Intention must be expressed
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II. – 4:101: Requirements for
the conclusion of a contract
• A contract is concluded, without
any further requirement, if the
parties:
• (a) intend to enter into a binding
legal relationship or bring about
some other legal effect; and
• (b) reach a sufficient agreement.
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II. – 4:102: How intention is
determined
• The intention of a party to enter
into a binding legal relationship or
bring about some other legal effect
is to be determined from the party’s
statements or conduct as they
were reasonably understood by the
other party.
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Agreement and terms
• Determination of intention to create
legal effect
• Determination of contents of the
contract
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Basic approaches
• Subjective approach
• Objective approach
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Lynx
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Subjective approach
• Common intention of parties
• One party’s intention is known to
the other party (or the other party
”could reasonably be expected to
be aware” of it)
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Common intention
• DCFR II.–8:101(1)
• CC art. 1362(1)
• English law (but question of
evidence)
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One party’s intention known to
the other party
• DCFR II.–8:101(2)
• Italian law – good faith?
• Relationship with rules on mistake
(and validity)
• Hartog v. Colin and Shields [1939]
3 All ER 566
FACULTY OF LAW, UNIVERSITY OF OSLO
Objective approach
• No common intention (or one
party’s intention known to the
other)
• Third party has relied on the
contract
• ”… the meaning that a reasonable
man would give to it”
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Comparison
• Codice Civile art. 1366
• English law: ”ordinary meaning” as
main rule
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Matters relevant to
interpretation
• DCFR II.–8:102
• Circumstances, negotiations
included
• Conduct of the parties, subsequent
conduct included
• Interpretations and practices
established by the parties
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Relevant matters (ctd.)
• Common interpretation in branch of
activity, previous interpretation
• Nature and purpose of the contract
• Usages
• Good faith and fair dealing
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Comparison
• Italian law: CC arts. 1362(2), 1366,
1368, 1369
• English law
– not negotiations
– not subsequent conduct
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Interpretation guidelines
• Character of such guidelines
(”interpretation rules”)
• Contra proferentem in particular
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Contra proferentem
• DCFR II.–8:103
• Codice Civile art. 1370
• ”Construction against grantor”
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Preference for negotiated
terms
• DCFR II.–8:104
• Codice Civile art. 1342(1)
• English law
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Contract as a whole
• DCFR II.–8:105
• Codice Civile art. 1363
• English law
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Effective terms
• DCFR II.–8:106
• Codice Civile art. 1367
• English law
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Language versions
• DCFR 8:107
• National law?
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Implied terms
• DCFR II.–9:101
• Codice Civile art. 1340 and 1374
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Common core or models
rules?
• How much is common?
• In particular English law
• Application of the principles
influenced by national law
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