George Mason School of Law

1. George Mason School of Law Contracts II Interpretation F.H. Buckley fbuckley@gmu.edu 1

2. Integration and Interpretation • Integration: May we look outside a writing to supplement it with additional terms? • Interpretation: May we look outside a writing to interpret the meaning of the words of the writing?

3. Integration and Interpretation • Integration: May we look outside a writing to supplement it with additional terms? • Interpretation: May we look outside a writing to interpret the meaning of the words of the writing? • Which was Masterson at 550?

4. Problems of Interpretation aren’t new • “Hoc est corpus meum" 4

5. Literary and Judicial Interpretation • Objectivism (Textualism) • Subjective Contextualism

6. Objective Textualism • Literary Criticism • Statutory Construction

7. Literary Interpretation • Objective Textualism: New Criticism • There is a meaning but the author’s intention is irrelevant. • Only the words of the text matter. • Wimsatt & Beardsley on the “intentional fallacy”

8. Objective Textualism and Statutory Interpretation • Justice Scalia’s Originalism • An “original meaning” theory • “It is the law that governs, not the intent of the lawgiver.” 8

9. Now, Subjective Contextualism • Literary Theory • Statutory Construction

10. Subjective ContextualismLiterary Interpretation • Authorial Intention • There is a meaning, and it is the author’s meaning • To be derived by seeking evidence about his motivation from a knowledge of his background and influences

11. Subjective ContextualismLiterary Interpretation • Legislative Interpretation • Original Intent theory • The meaning of a written constitution is what was meant by those who drafted and ratified it.

12. Contract Interpretation • “125 bales of Surat cotton, ex Peerless from Bombay”: Raffles v. Wickelhaus The Peerless

13. Contract Interpretation:Some problems are impacted • “125 bales of Surat cotton, ex Peerless from Bombay”: Raffles v. Wickelhaus • Neither textual nor contextual theories could resolve the ambiguity

14. Contract Interpretation: In re Soper • In other cases, textualism and contextualism point in opposite directions

15. In re Soper: “to my wife” • On objective or plain meaning standards, who is the wife? 15

16. In re Soper: “to my wife” • On objective or plain meaning standards, who is the wife? • On subjective or contextualist standards, who is the wife? 16

17. In re Soper: “to my wife” • On objective or plain meaning standards, who is the wife? • On subjective or contextualist standards, who is the wife? • To hold otherwise would give the word “a fixed symbol” 17

18. In re Soper • How might Soper have cured the problem? 18

19. In re Soper • How might Soper have cured the problem? • “to my wife, Gertrude Whitby Young” • So why didn’t he? 19

20. In re Soper • How might Soper have cured the problem? • “To my wife, Gertrude Whitby Young” • So why didn’t he? 20

21. In re Soper • How might Soper have cured the problem? • “To my wife, Gertrude Whitby Young” • So why didn’t he? • Does Restatement § 207 assist? • Cf. Olsen’s dissent 21

22. In re Soper • How might Soper have cured the problem? • Olson and Olsen…how do you tell them apart? 22

23. In re Soper • How might Soper have cured the problem? • Olson and Olsen…how do you tell them apart? • Mary Kate is the anorexic one… 23

24. Pacific Gas • What did the indemnity clause state? • What does “A indemnifies B” mean? 24

25. Pacific Gas • What did the indemnity clause state? • What does “A indemnifies B” mean? • A compensates B for claims asserted by C against B 25

26. Pacific Gas • What did the indemnity clause state? • What does “A indemnifies B” mean? • A compensates B for claims asserted by C against B • Qu. A compensates B for losses caused by A 26

27. Pacific Gas • What did the indemnity clause state? • What does “A indemnifies B” mean? • A compensates B for claims asserted by C against B • Qu. A compensates B for losses caused by A • Just how would you expect damage to arise “in any way connected with the performance of this contract”? 27

28. Pacific Gas • What did the indemnity clause state? • What does “A indemnifies B” mean? • A compensates B for claims asserted by C against B • Qu. A compensates B for losses caused by A. • What did the trial court hold? 28

29. Pacific Gas • What did the indemnity clause state? • What does “A indemnifies B” mean? • A compensates B for claims asserted by C against B • Qu. A compensates B for losses caused by A. • What did the trial court hold? • And on what theory of interpretation? 29

30. Pacific Gas • What did the indemnity clause state? • What does “A indemnifies B” mean? • A compensates B for claims asserted by C against B • Qu. A compensates B for losses caused by A. • What did the trial court hold? • Is “indemnify” ambiguous? See note 42 30

31. Pacific Gas • What did the indemnity clause state? • What does “A indemnifies B” mean? • A compensates B for claims asserted by C against B • Qu. A compensates B for losses caused by A. • And Traynor? • You can see this coming, can’t you? 31

32. Pacific Gas • Traynor as a subjectivist • Primitive faith • Magic words • Totemistic words 32

33. Pacific Gas • Traynor as a subjectivist • Meaning is necessarily contingent on “verbal context and surrounding circumstances and purposes in view of the linguistic education and experience of their uses and their hearers or readers (not excluding judges” 33

34. Pacific Gas • Traynor as a subjectivist • Meaning is necessarily contingent on “verbal context and surrounding circumstances and purposes in view of the linguistic education and experience of their uses and their hearers or readers (not excluding judges” • Do you agree? 34

35. Pacific Gas • Traynor as a subjectivist • Meaning is necessarily contingent on “verbal context and surrounding circumstances and purposes in view of the linguistic education and experience of their uses and their hearers or readers (not excluding judges” • Do you see any point to a dictionary? 35

36. Pacific Gas • Traynor as a subjectivist • Meaning is necessarily contingent on “verbal context and surrounding circumstances and purposes in view of the linguistic education and experience of their uses and their hearers or readers (not excluding judges” • Can one draft one’s way around this? 36

37. Pacific Gas • Traynor as a subjectivist • Meaning is necessarily contingent on “verbal context and surrounding circumstances and purposes in view of the linguistic education and experience of their uses and their hearers or readers (not excluding judges” • What does “rational interpretation” (p. 587) require? 37

38. Alex Kozinski and New Textualism

39. Kozinski and New TextualismThe Trident Center, West LA 39

40. Kozinski and New TextualismThe Trident Center • Completed in 1983, Trident Center consists of two, steel-framed, 10-story office towers containing approximately 383,000 square feet and connected by a five-level parking structure. Trident Center is situated on approximately 3.6 acres of beautifully landscaped common areas rich with tenant amenities. 40

41. Yeah, right! 41

42. Trident Center • “Maker shall not have the right to prepay for the first 12 years.” 42

43. Trident Center • “Maker shall not have the right to prepay for the first 12 years.” • So: Does maker have the right to prepay after four years, when interest rates have fallen? 43

44. Trident Center • “Maker shall not have the right to prepay for the first 12 years.” • So: Does maker have the right to prepay after four years? • In the event of prepayment resulting from a default the prepayment fee will be 10 percent. 44

45. Trident Center • In the event of prepayment resulting from a default the prepayment fee will be 10 percent. • Did Trident have the right to trigger this? 45

46. Trident Center • In the event of prepayment resulting from a default the prepayment fee will be 10 percent. • Did Trident have the right to trigger this? • Why might Connecticut General not wish to exercise this option? 46

47. Trident Center • In the event of prepayment resulting from a default the prepayment fee will be 10 percent. • Did Trident have the right to trigger this? • Why might Connecticut General not wish to exercise this option? • And why might Trident not want to default? 47

48. New Textualism • Does the Restatement help? • Good faith § 205 48

49. New Textualism • Does the Restatement help? • Good faith § 205 • Interest rates were on everyone’s mind 49

50. New Textualism • Does the Restatement help? • Good faith § 205 • Was this between sophisticated parties? 50 50