McMeel on the Construction of Contracts: Interpretation, Implication and Rectification 4th ed

This fourth edition is an authority on the construction of contracts. It uniquely encompasses all the principal techniques by which the meaning and effect of agreements are ascertained: the interpretation of express language, the implication of terms, and the rectification of documents. The general principles of interpretation and the implication of terms implied in fact-or gap-fillers-have been relatively settled in the period since the last edition. Meanwhile terms implied in law, or general default rules, have come to the forefront in a sequence of Supreme Court judgments, including Wells v Devani, Triple Point Technology Inc v PTT, Barton v Morris, and Philipp v Barclays Bank, which have emphasized their role in providing transactional templates and setting minimum standards. Likewise, this edition explores the changes to the principles of common mistake rectification, analysing the impact of the Court of Appeal in FSHC Group Holdings v Glas Trust, and the Supreme Court in RMT v Nexus.

The fourth edition further explores how the contra proferentem principle has become unfashionable in the eyes of English judges, and has been superseded by the more muscular clear words principle, in respect of exemption clauses, force majeure, and more generally. Brand new chapters discuss restriction of variation ('no oral modification') clauses, in the wake of MWB v Rock Advertising, and dispute resolution agreements, after Enka v Chubb. The text addresses cases that emerged in the context of Brexit, the Covid-19 pandemic, and renewed international conflicts and the accompanying sanctions. McMeel on the Construction of Contracts continues to be an essential reference work for commercial and corporate lawyers, both litigators and those negotiating and drafting deals, as well as the judges who rule on cases pertaining to contracts.

table of content

I. THE GENERAL PART

1:Principles and Policy

2:Comparative and Theoretical Perspectives

3:The Objective Principle of Construction

4:Internal Context: The Whole Contract Approach

5:External Context: Surrounding Circumstances, 'Matrix', and 'Background'

6:Standard Form Contracts and Standard Provisions or 'Boilerplate Clauses'

7:Presumptions

8:Maxims

 

II. RELATED DOCTRINES

9:Implication of Terms: General Principles

10:Implication of Terms at Law: Standard Incidents, Mandatory Rules, and Default Rules

11:Implication of Terms in Fact: Contractual Gap Filling

12:Custom, Usage and Trade Practice

13:New Horizons: Relational Contracts, Obligations of Good Faith, and Constraining Contractual Discretions

14:Formation and Certainty

15:Incorporation and Proof of Terms

16:Parties, Third Party Effects, and Clauses Precluding Assignment

17:Rectification and Correcting Mistakes through Construction

18:Estoppel by Convention and Estoppel by Deed

19:Construction and Mistake as a Vitiating Factor

 

III. PARTICULAR CONTRACTUAL PROVISIONS

20:Conditions, Warranties, and Indemnities

21:Exemption Clauses and Unfair Contract Terms

22:Change of Circumstances and Force Majeure Clauses

23:Restriction of Variation and Waiver (or 'No Oral Modification') Clauses

24:Express Termination Clauses and Other Modifications of Remedies

25:Payment Provisions, Agreed Damages Clauses, and the Penalty Rule

26:Time Stipulations

27:The Integrity of the Instrument: 'Entire Agreement' and 'Non-Reliance' Clauses

28:Dispute Resolution: Choice of Court Agreements, Choice of Law, Arbitration, and Alternative Dispute Resolution

 

IV. RULES RELATING TO WRITTEN CONTRACTS

29:The Status of Instruments: Forgeries, Deliberate Alteration, Non Est Factum, and Shams

 

V. CONSTRUCTIONS AND PRACTICE

30:Evidence and Practice