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 • Subjective Contextualism • Objective • Deconstruction

6. Literary Interpretation • Subjective Contextualism: 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

7. Literary Interpretation • Subjective: Authorial Intention • Objective: 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. Objectivism and the “New Criticism” • T.S. Eliot, Cleanth Brookes, John Crowe Ransom: only the text matters Cleanth Brookes 8

9. Literary Interpretation • Subjective: Authorial Intention • Objective: New Criticism • Deconstruction • Any meaning is illusive

10. Deconstructionism • The text is devoid of stable meaning: Barthes, Derrida, Paul de Man • Privileging the reader (judge) Paul de Man 10

11. Some Interpretive Problems Are Impacted • “125 bales of Surat cotton, ex Peerless from Bombay”: Raffles v. Wickelhaus The Peerless

12. Where there is an ambiguity,what are the court’s choices? • Just say no: Raffles v. Wichelhaus • No discernable common meaning • A punitive approach? 12

13. Where there is an ambiguity,what are the court’s choices? • Just say no: Raffles v. Wichelhaus • No discernable common meaning • A punitive approach? • Plain meaning (“objectivism”) 13

14. Where there is an ambiguity,what are the court’s choices? • Just say no: Raffles v. Wichelhaus • No discernable common meaning • A punitive approach? • Plain meaning (“objectivism”) • External evidence of subjective intent (“contextualism”) 14

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 “The question of who is one’s wife is at times a matter of genuine dispute” (per Olson J.) 18

19. In re Soper • How might Soper have cured the problem? 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 I did not have sex with that woman! 21

22. In re Soper Oh, you mean THAT woman… 22

23. 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 assist? 23

24. In re Soper • How might Soper have cured the problem? • Olson and Olsen…how do you tell them apart? 24

25. In re Soper • How might Soper have cured the problem? • Olson and Olsen…how do you tell them apart? • Mary Kate is the intelligent one… 25

26. Pacific Gas • What did the indemnity clause state? • What does “A indemnifies B mean”? 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 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 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 • Just how would you expect damage to arise “in any way connected with the performance of this contract”? 29

30. Karl Llewellyn Courts should have a “situation sense” to understand what parties mean in their contract. 1893-1962 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. • What did the trial court hold? 31

32. 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? 32

33. Pacific Gas • Traynor as a deconstructionist • Primitive faith • Magic words • Totemistic words 33

34. Pacific Gas • Traynor as a deconstructionist • Primitive faith • Magic words • Totemistic words • Can one draft one’s way around this? Really? 34

35. Alex Kozinski and New Textualism

36. Kozinski and New TextualismThe Trident Center, West LA 36

37. 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. 37

38. Yeah, right! 38

39. Trident Center • “Maker shall not have the right to prepay for the first 12 years.” 39

40. 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? 40

41. 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. 41

42. Trident Center • Which is dispositive and why? • What if Trident stopped making payments to trigger a default? 42

43. New Textualism • Does the Restatement help? • Good faith § 205 • Contra proferentum § 206 43

44. New Textualism • Does the Restatement help? • Good faith § 205 • Contra proferentum § 206 • Interest rates were on everyone’s mind 44

45. New Textualism • Does the Restatement help? • Good faith § 205 • Contra proferentum § 206 • Was this between sophisticated parties? 45 45

46. New Textualism Mitchell Silberberg & Knupp web site: CORE SERVICES: Commercial PropertiesRepresent purchasers and sellers of commercial property as well as owners, developers, investors and contractors in planning, zoning, entitling, financing, development, construction of commercial, industrial, retail, residential and hotel projects. 46

47. New Textualism • Manat Phelps Law Firm: • Manatt's attorneys have a broad background in all areas of real estate, land use and hospitality. Our professionals are among the premier real estate and development advisors in the nation 47

48. New Textualism • Does the Restatement help? • Good faith § 205 • Contra proferentum § 206 48

49. New Textualism • Does the Restatement help? • Good faith § 205 • Contra proferentum § 206 • But this was between sophisticated parties • Were they really much less so in Pacific Gas? UAW, Hunt Foods? 49

50. New Textualism • What do you think of Kozinski’s critique of contextualism? • And how does he decide the case? 50