Lloyd's Maritime and Commercial Law Quarterly
Book Reviews
THE INTERPRETATION OF CONTRACTS (4th edition). Sir Kim Lewison, Justice of the High Court of Justice. Sweet & Maxwell, London (2007) lxix and 620 pp, plus 8 pp Index. Hardback £195.
THE CONSTRUCTION OF CONTRACTS: Interpretation, Implication and Rectification. Gerard McMeel, Professor of Law, University of Bristol. Oxford University Press, Oxford (2007) lvii and 555 pp, plus 8 pp Bibliography and 20 pp Index. Hardback £135.
INTERPRETATION OF CONTRACTS: Current Controversies in Law. Catherine Mitchell, Senior Lecturer in Law, University of Hull. Routledge Cavendish, London (2007) xiii and 148 pp, plus 7 pp Bibliography and 4 pp Index. Paperback £17.99.
As with any text, a contract is no more than the words that are spoken or spelled on the page. The meaning of a contract depends on the way those words are used and understood. Giving meaning to a contract is essentially one of impression upon the judge or lawyer, informed by legal principle. The construction of a contract, therefore, can be a matter of individual taste, although there are “rules” of construction guiding the interpreter. The less clear the choice of words, alternative interpretations become more likely. Even clearly expressed contracts, however, may lend themselves to differing meanings depending on the text or context.
Against this background, everyone is able to interpret the spoken or written word. It might be said that it is a skill possessed by every lawyer, even though it can result in differing interpretations. As Professor McMeel notes, it is a skill for which there is little professional training. Perhaps a book explaining the principles of construction should be the cornerstone of every lawyer’s library. It is fortunate therefore that three books on contractual interpretation have been published in the past year. These three books differ in tone and purpose as much as three lawyers will differ in interpreting a contract.
McMeel’s book is perhaps the bravest; it is a reflective and scholarly treatment of the principles and policies underlying the construction of contracts and related doctrines. It stands between Sir Kim Lewison’s book (now in its 4th edition) which combines erudition with a sympathy for use by the practitioner; and Catherine Mitchell’s very readable and perceptive analysis of the modes and motives behind judicial interpretation of contracts.
McMeel begins his study by explaining the core principles of contractual interpretation, based on the meaning of the contract’s formulation in context as reasonably understood by the parties, in light of the contract’s purpose and common sense. One need only cite the decisions of Lords Steyn and Hoffmann, in McMeel’s words the “two architects of the modern principles of construction” (perhaps not the “demi-gods” as described by Munby, LJ in Beazer Homes Ltd v Stroude [2005] EWCA Civ 265, [29], and quoted by Mitchell (61)), expressed, explained and refined since 1997, to observe that a contract’s true interpretation resides between the polar literal and contextual meanings, the compass needle darting between certainty and the parties’ perceived intention. The authors rightly acknowledge that the process of divining that intention has been elucidated, not legislated, by the two architects.
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