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Browsing by Author "Gray, Benjamin Niko"

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  • Gray, Benjamin Niko (2022)
    The interpretation of commercial contracts is an important topic in international business. Assigning meaning to contracts determines what rights and obligations contracting parties actually have. This Master’s thesis compares the doctrine of interpretation under the Law of England and Wales and Nordic Law, focusing on the rules surrounding admissible material. Through a systematic comparative analysis, this thesis presents the similarities and differences between the two doctrines. The Nordic approach to interpretation starts with finding the actual common intention of the parties, before turning to the actual intention of one of the parties where the other party ought to have known of that intention. The law of England and Wales calls this subjective process rectification and sees it as a separate doctrine, existing outside of interpretation. When finding the objective meaning of a contract both doctrines take a similar approach. Both doctrines start with the text of the document itself before considering the objective context and the same types of objective context material are considered. The doctrines diverge, however, in their test of admissibility. The law of England and Wales adopts an objective approach, asking whether a reasonable person would consider the material relevant. Nordic Law adopts a subjective approach; the material must actually be relevant to the parties. This thesis also analyses the role of pre-contractual negotiations in interpretation. Subjective context material is not admissible under the law of England and Wales but is admissible under Nordic Law. The Law of England and Wales excludes pre-contractual negotiations from interpretation on the basis that loyalty to the final contractual document honours the will of the parties and creates certainty. These principles are based on the underlying axioms of party autonomy and freedom of contract. Nordic Law admits pre-contractual negotiations on the basis that they can provide evidence as to the parties’ intention and provide for individual justice. These principles are also based on the underlying axioms of party autonomy and freedom of contract. This analysis demonstrates the similarity between the doctrines as even where they diverge on a particular rule, the underlying principles are the same. Finally, this thesis presents a case study and shows that there is little difference between the doctrines in determining the objective meaning of a contract. Both doctrines give the contract a textual meaning but the threshold for displacing the textual meaning by other contextual factors is much higher under the law of England and Wales than under Nordic Law.