The Construction of Contracts (2nd edition)

ISBN : 9780199582488

Gerard McMeel
864 ページ
181 x 253 mm

This new edition provides a clear and comprehensive account of the legal principles and doctrines that come into play whenever parties disagree about the meaning and effect of contractual words. It is particularly useful for solicitors and barristers litigating disputes in the fields of commercial, corporate, banking, financial services and property law. The common law principles and techniques of construction have recently come to greater prominence as judges seek to modernise the approach to the interpretation of contractual instruments. This work provides a comprehensive account of the principles involved, focusing on the practitioners' needs, tackling modernisation head on and equipping readers with the necessary means to avoid pitfalls in contractual provisions. The coverage extends to related rules and doctrines, including rectification and implication of terms, and consideration of the status of the controversial 'parol evidence rule.' The book also considers the nature of effect of particular types of contractual provision, including warranties and indemnities, exemption clauses, force majeure clauses and entire agreement clauses. Content new to this edition includes coverage of additional clauses such as retention of title, time and payment clauses, as well as an examination of the relationship between the rules for the interpretation of contracts and statutory interpretation.


1. Principles and Policies
Interpretation, Implication, and Rectification
The Evolution of the Principles of Construction
Principles and Policies
Ten Leading Decisions in the House of Lords
Concluding Observations
2. Comparative and Theoretical Perspectives
Comparative Perspectives
Theoretical Perspectives
3. The Objective Principle of Construction
The Objective Principle in Contract Formation
The Objective Principle in Interpretation
The Objective Principle in Implication
The Objective Principle in Rectification
4. Internal Context: The Whole Contract Approach
The Whole Contract or Holistic Approach
The Constituent Parts of a Contract
5. External Context: Surrounding Circumstances, 'Matrix', and 'Background'
Key Points
The Traditional Approach: the Surrounding Circumstances
The Modern Approach: 'Matrix' to 'Background'
The Exclusionary Rules
The Future
6. Standard Form Contracts, Public Policy, and the Realms of Strict Construction and Strict Compliance
Key Points
Standard Form Contracts
Other Examples of Strict Construction
Strict Compliance and Contractual Machinery
7. Presumptions
Statutory Presumptions
Common Law Presumptions
8. Maxims
Contra proferentem
Ut res magis valeat quam pereat
Expressio unius
Eiusdem generis
Noscitur a sociis
Reddendo singula singulis
9. New Horizons: Good Faith, Contractual Discretions, and Human Rights
Reasonableness, Fairness, and Good Faith?
Contractual Discretion and Analogies with Public Law
Human Rights
Human Rights, Cultural Traditions, and Context
10. Implication of Terms: General Principles and Implied Terms at Law
General Principles of Implication of Terms
Implication of Terms at Law ('General Default Rules')
Principles for Developing New Implied Terms at Law
Implied Terms and the Employment Relationship
Implied Terms as to Cooperation
11. Implied Terms in Fact
The Relationship between Implication and Interpretation
The Relationship between Implication and Rectification
The Modern Test for Implication in Fact: Attorney-General for Belize v Belize Telecom Ltd
The Traditional Tests for the Implication of Terms in Fact
Applying the Technique of Implication in Fact
Implied Terms and Contractual Discretions
Some Particular Types of Implied Terms
Entire Agreement Clauses and Implied Terms
12. Custom and Usage
Custom, Practice, and Usage
Supplementing or Contradicting the Written Contract
Certain, Notorious, Reasonable
13. Technical and Legal Language
Legal Language
Scientific, Technical, and Specialist Language
Foreign Language
14. Formation and Certainty
Construction Techniques in Formation and the Interface with Certainty
Particular Topics Relating to Contractual Certainty
Implied Contracts and Contracts by Conduct
15. Proof of Terms and Incorporation of Terms
Key Points
Proof of Terms
Incorporation of Terms
Incorporation by Signature
Incorporation by Notice
Incorporation by a Course of Dealing
Incorporation by Reference
The Effect of Misrepresentation
Limitations on Incorporation: The Effect of the interfoto Principle on 'Onerous and Unusual' Terms
16. Parties, Third Party Effects, and Clauses Precluding Assignment
Identifying the Parties to the Contract
The Third Party Effects of Contracts
Anti-assignment Clauses
17. Rectification and Correcting Mistakes through Construction
Construction as a Technique for Correcting Mistakes in Expression
Rectification of Documents in Equity
Common Mistake
Unilateral Mistake
General Matters
18. Common Assumptions, Estoppel by Convention, and Estoppel by Deed
Estoppel by Convention
Relationship with Other Species of Estoppel
Two Leading Cases
The Ingredients of Estoppel by Convention
Estoppel and Pre-contractual Statements
Estoppel By Deed
19. Construction and Mistake as a Vitiating Factor
The Intricate Relationship between Mistake and Interpretation
Common Mistake
Equitable Mistake
20. Conditions, Warranties, and Indemnities
Warranties in Business Acquisition Contracts
Construction of Indemnity Clauses
21. Exemption Clauses and Unfair Contract Terms
Construction of Exemption Clauses
Excluding Liability for Negligence
Carving out Fraud
'Direct', 'Indirect', and 'Consequential' Losses
Statutory Control: The Unfair Contract Terms Act 1977
General Approach to the Unfair Contract Terms Act 1977
The Unfair Terms in Consumer Contracts Regulations 1999
22. Change of Circumstances and 'Force Majeure' Clauses
Key Points
The Common Law Doctrine of Frustration
Incorporating Express Terms to Deal with Changes of Circumstances
Construction of the Operation and Effect of Force Majeure Clauses
23. Modification of Remedies: Express Termination, Retention of Title and No Set-off Clauses
Express Termination Clauses
Retention of Title
Restriction of Set-off
24. Payment: Penalties, Liquidated Damages, Acceleration, and Default Interest Clauses
Payment Clauses
Liquidated Damages Clauses
Minimum Payment Clauses
Accelerated Payment Clauses
Default Interest Clauses
25. Time Stipulations
Construction of Time Stipulations
Time of the Essence: the General Rule
Making Time of the Essence
Calculating Time
26. The Integrity of the Instrument: 'Entire Agreement' and 'Non-reliance' Clauses
'Entire Agreement' and 'Non-reliance' Clauses
Construction of Entire Agreement Clauses
Entire Agreement Clauses and Collateral Warranties
Non-reliance Clauses and Excluding Liability for Misrepresentation
Statutory Regulation
Entire Agreement Clauses and Implied Terms
Impact of Entire Agreement Clause on Extrinsic Evidence
Final Comparative Reflection
27. The Status of Instruments: Forgeries, Deliberate Alteration, Non Est Factum, and Shams
Deliberate Alteration of Instruments
Non Est Factum
28. Evidence and Practice
The Modern Law of Civil Evidence
The Best Evidence Rule
Practice: Procedures for Determining Issues of Construction


Gerard McMeel is Professor of Law at the University of Bristol and writes widely on contract law and commercial and financial legal matters. He is a graduate of Brasenose College, Oxford University. Gerard is a barrister at Guildhall Chambers in Bristol and specialises in both commercial and financial disputes. He is also a Door Tenant of Quadrant Chambers, a leading commercial set in London. Gerard combines an academic interest in commercial and financial law with an active private practice in the field. This work on contractual interpretation proceeds from earlier work in the field, and is in part the result of lecturing on the subject to lawyers across England and Wales.