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Hutchison, Andrew --- "Contractual interpretation: the South African blend of common, civil and indigenous law in comparative perspective" [2017] ELECD 619; in Monateri, Giuseppe Pier (ed), "Comparative Contract Law" (Edward Elgar Publishing, 2017) 451

Book Title: Comparative Contract Law

Editor(s): Monateri, Giuseppe Pier

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849804516

Section: Chapter 18

Section Title: Contractual interpretation: the South African blend of common, civil and indigenous law in comparative perspective

Author(s): Hutchison, Andrew

Number of pages: 18

Abstract/Description:

Interpretation of legal documents remains as relevant today as it was in Roman times. While theories of interpretation vary between the major legal families of European law, the essential characteristics of a particular approach to interpretation tend (invariably) to simply be nuanced aspects of subjective or objective methods. To use the language of the historic sources, there is a reconciliation that needs to take place between the verba (or objective language) used by the drafter(s) of a legal instrument and the voluntas (or subjective intention) which it was intended to convey. In the case of a contract, if the objective meaning of the language used and the subjective intentions of the parties to that contract coincide, then the task of an interpreter is easy. If, however, the evidence suggests that there has been an error in the drafting of the contract; or that it does not make commercial sense as written; or that there is an ambiguity in the language used; then the task of the interpreter is more difficult. This chapter will consider the potential theoretical paradigms through which a contract may be read, so as to resolve the difficulties of interpretation. The primary focus will be on the law of contractual interpretation in South Africa, although there will also be an historical and comparative look at the other major European schools of legal thought, particularly the English common law approach, as well as certain supra-national model laws.