Book contents
- Frontmatter
- Dedication
- Acknowledgments
- Contents
- List of Cases
- Introduction
- Chapter 1 General and Specific Rules on Interpretation
- Chapter 2 Specific Rules of Interpretation
- Chapter 3 Good Faith and Fair Dealing and Contract Interpretation
- Chapter 4 Gap Filling in the PICC, CISG, PECL and DCFR
- Conclusion
- Bibliography
- ABOUT THE AUTHOR
Chapter 2 - Specific Rules of Interpretation
Published online by Cambridge University Press: 23 January 2020
- Frontmatter
- Dedication
- Acknowledgments
- Contents
- List of Cases
- Introduction
- Chapter 1 General and Specific Rules on Interpretation
- Chapter 2 Specific Rules of Interpretation
- Chapter 3 Good Faith and Fair Dealing and Contract Interpretation
- Chapter 4 Gap Filling in the PICC, CISG, PECL and DCFR
- Conclusion
- Bibliography
- ABOUT THE AUTHOR
Summary
Besides the general rules of interpretation, the Convention on Contracts for the International Sale of Goods (CISG), Principles of European Contract Law (PECL), Principles of International Commercial Contracts (PICC) and Draft Common Frame of Reference (DCFR) also contain some specific rules which need to be examined.
CONTRA PROFERENTEM RULE
The contra proferentem rule is a widely recognized interpretation rule which also found its place in the PECL, the UNIDROIT Principles and the DCFR. The CISG does not contain an express article on contra proferentem, which created a discussion about the application of the rule to contracts governed by this instrument.
DEFINING THE RULE
The contra proferentem rule is an interpretation rule which holds that ambiguities in the language of a contract should be construed against the drafter of the unclear contract clause. It is an interpretative maxim of ius commune which found its place in continental jurisdictions “ under the guise of judge-made rules developed alongside the codifications ”.
It is expressed by the ancient formula verba cartarum fortius accipiuntur contra proferentem in Bacon's Maxims of the Law. Bacon states that “this rule, that a man's deeds and his words shall be taken strongliest against himself, though it be one of the most common grounds of the law, it is notwithstanding a rule drawn out of the depth of reason”. He acknowledges that “the force of this rule is in three things, in ambiguity of words, in implication of matter, and reducing and qualifying the exposition of such grants as were against the law, if they were taken according to their words”.
Four grounds have been given in the literature for the application of the contra proferentem rule. Accordingly,
Nobody should benefit from his own wrong and it is wrong to formulate a defective clause;
A party who drafted or otherwise supplied a contractual term may be responsible for its formulation and should bear the risk of the ambiguity of that particular term;
The ambiguity might have misled the other party and induced him to conclude the contract; and
The bargaining power between the parties is unequal.
It is the second rationale which is adopted in the comments of the PECL Article 5.103 and the Article 4.6 UNIDROIT Principles on contra proferentem rule that we will examine below.
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- Publisher: IntersentiaPrint publication year: 2019