1. 11 George Mason School of Law Contracts II Interpretation Not to be shared © F.H. Buckley fbuckley@gmu.edu

2. Terms and Interpretation  Terms: May we look outside a writing to supplement it with additional terms?  Interpretation: May we look outside a writing to interpret the meaning of the words of the writing? 2

3. Terms and Interpretation  Terms  Interpretation  Which was Masterson at 550?  “an option to purchase” 3

4. 4 Sometimes there’s no common meaning…and no contract  Raffles v. Wickelhaus at 572 The Peerless

5. 5 Sometimes there’s no common meaning…and no contract  “125 bales of Surat cotton, ex Peerless from Bombay”: Raffles v. Wickelhaus The Peerless

6. 6 Sometimes there’s no common meaning…and no contract  What’s a court to do, in that case?

7. 7 Sometimes there’s no common meaning…and no contract  What’s a court to do, in that case?  Restatement§20 on”misunderstandings”: “There is no manifestation of mutual assent if the parties attach materially different meanings to their manifestations”

8. Interpretive Theories  Literary Interpretation Subjective Objective 8

9. Literary Interpretation  Subjective: Authorial Intention There is a meaning, and it is the author’s meaning To be derived by seeking evidence about his motivation from a knowledge of his background and influences 9

10. Literary Interpretation  Objective Privileges the reader: There is a meaning but the author’s intention is irrelevant. Only the words of the text matter. 10

11. Two kinds of Originalism in Constitutional Law  Subjective: Original Intent Originalism The Records of the Philadelphia Convention  Objective: Original Meaning Originalism What would an ordinary reader in 1787 have made of the words of the Constitution 11

12. At Contract Law  Subjective: Contextualism Find out what the parties might have meant by looking at all background evidence  Objective: Textualism Don’t look outside the words of the contract: “Plain Meaning” 12

13. Terms and Interpretation Writing onlyOral Evidence TermsParol Evidence Rule: Burke in Masterson Unintegrated Agreements: Traynor in Masterson 13

14. Terms and Interpretation Writing onlyOral Evidence TermsParol Evidence Rule: Burke in Masterson Unintegrated Agreements: Traynor in Masterson InterpretationTextualismContextualism 14

15. 15 Textualism in New York  WWW v. Giancontieri at 569 What did clause 31 provide? 15

16. 16 Textualism in New York  WWW v. Giancontieri at 569 What was the reason for clause 31?  Why might the buyer want to exercise the cancellation right? 16

17. 17 Textualism in New York  WWW v. Giancontieri at 569 What was the reason for clause 31?  Why might the seller want to exercise the cancellation right? 17

18. 18 Textualism in New York  WWW v. Giancontieri at 569 What was the reason for clause 31?  Why might the seller want to exercise the cancellation right?  Does that matter? 18

19. 19 Textualism in New York  WWW v. Giancontieri at 569 What was the reason for clause 31?  Was there any ambiguity?  Was there a good faith issue? 19

20. 20 The Limits of Textualism: In re Soper 573 20

21. 21 In re Soper 573: “to my wife”  On objective or plain meaning standards, who is the wife? 21

22. 22 In re Soper: “to my wife”  On objective or plain meaning standards, who is the wife?  On subjective or contextualist standards, who is the wife? 22

23. 23 In re Soper: “to my wife”  On objective or plain meaning standards, who is the wife?  On subjective or contextualist standards, who is the wife? To hold otherwise would give the word “a fixed symbol” 23

24. 24 In re Soper  How might Soper have cured the problem? 24

25. 25 In re Soper  Did Olsen J in dissent have it right? 25

26. 26 In re Soper  How might Soper have cured the problem? “to my wife, Gertrude Whitby Young”  So why didn’t he? 26

27. 27 In re Soper: “to my wife”  Did the insurer know about Adeline? And what if it had simply paid out to Gertrude? 27

28. 28 Pacific Gas 574 28 Roger Traynor

29. 29 Pacific Gas 574  Why did Pacific Gas sue in Contract? 29

30. 30 Pacific Gas 574  What did the indemnity clause state? 30

31. 31 Pacific Gas  What did the indemnity clause state? What does “A indemnifies B mean”? 31

32. 32 Pacific Gas  What did the indemnity clause state? What does “A indemnifies B mean”?  A compensates B for claims asserted by C against B and caused by A? 32

33. 33 Pacific Gas  What did the indemnity clause state? What does “A indemnifies B mean”?  A compensates B for claims asserted by C against B  Qu. A compensates B for losses incurred by B and caused by A? 33

34. 34 Pacific Gas  What did the indemnity clause state? What does “A indemnifies B mean”?  A compensates B for claims asserted by C against B  Qu. A compensates B for losses caused by A  Just how would you expect damage to arise “in any way connected with the performance of this contract”? 34

35. 35 Pacific Gas  What did the indemnity clause state? What does “A indemnifies B mean”?  A compensates B for claims asserted by C against B  Qu. A compensates B for losses caused by A  Did the reference to “damage” in addition to “liability” introduce ambiguity? 35

36. 36 Pacific Gas  What did the indemnity clause state? What does “A indemnifies B mean”?  A compensates B for claims asserted by C against B  Qu. A compensates B for losses caused by A.  What did the trial court hold? A “plain language” standard 36

37. 37 Pacific Gas  What did the indemnity clause state? What does “A indemnifies B mean”?  A compensates B for claims asserted by C against B  Qu. A compensates B for losses caused by A.  And Traynor? You can see this coming, can’t you? 37

38. 38 Pacific Gas  Traynor rejects textualism Primitive faith in magic words 38

39. 39 Pacific Gas: Footnote 2  "The elaborate system of taboo and verbal prohibitions in primitive groups; the ancient Egyptian myth of Khern, the apotheosis of the words, and of Thoth, the Scribe of Truth, the Giver of Words and Script, the Master of Incantations; the avoidance of the name of God in Brahmanism, Judaism and Islam; totemistic and protective names in mediaeval Turkish and Finno-Ugrian languages; the misplaced verbal scruples of the 'Precieuses'; the Swedish peasant custom of curing sick cattle smitten by witchcraft, by making them swallow a page torn out of the psalter and put in dough....' from Ullman, The Principles of Semantics (1963 ed.) 43. (See also Ogden and Richards, The Meaning of Meaning (rev. ed. 1956) pp. 24- 47.) 39

40. 40 Thoth Rules! 40 The Scribe of Truth and Giver of Words

41. 41 Pacific Gas  Traynor rejects textualism Primitive faith in magic words  Can one draft one’s way around this? 41

42. 42 Pacific Gas  Traynor as a deconstructionist Primitive faith in magic words  Can one draft one’s way around this? Really? 42

43. 43 Pacific Gas  What do you think Traynor would have done had the trial judge ruled that the plain meaning of the contract was just the opposite? that the indemnity clause didn’t apply? 43

44. 44 Alex Kozinski and New Textualism

45. 45 Trident Center at 577 The Trident Center, West LA 45

46. 46 Kozinski and New Textualism The Trident Center 46  Completed in 1983, Trident Center consists of two, steel-framed, 10-story office towers containing approximately 383,000 square feet and connected by a five-level parking structure. Trident Center is situated on approximately 3.6 acres of beautifully landscaped common areas rich with tenant amenities.

47. 47 Yeah, right… 47

48. 48 Trident Center  “Maker shall not have the right to prepay for the first 12 years.” 48

49. 49 Trident Center  “Maker shall not have the right to prepay for the first 12 years.” So: Does maker have the right to prepay after four years? 49

50. 50 What happened to interest rates 50

51. 51 Trident Center  In the event of prepayment resulting from a default the prepayment fee will be 10 percent. But whose option? 51

52. 52 Trident Center  Which is dispositive and why? What if Trident stopped making payments to trigger a default? Does Connecticut have an option? 52

53. 53 Trident Center  Was this between sophisticated parties? 53

54. 54 Trident Center  Mitchell Silberberg & Knupp web site: CORE SERVICES: Commercial Properties Represent purchasers and sellers of commercial property as well as owners, developers, investors and contractors in planning, zoning, entitling, financing, development, construction of commercial, industrial, retail, residential and hotel projects. 54

55. 55 Trident Center  Manat Phelps Law Firm: Manatt's attorneys have a broad background in all areas of real estate, land use and hospitality. Our professionals are among the premier real estate and development advisors in the nation 55

56. 56 Trident Center  Was this between sophisticated parties Were they really much less so in Pacific Gas? Hunt Foods? 56

57. Going outside the writing Writing onlyOral Evidence Terms Interpretation 57

58. Going outside the writing Writing onlyOral Evidence TermsParol Evidence Rule: Burke in Masterman The Four Corners Rule Complete Integration Effective Merger Clauses Interpretation 58

59. What has been promised? Writing onlyOral Evidence TermsParol Evidence Rule: Burke in Masterman Unintegrated Agreements Partial Integration Traynor on the need to refer to oral evidence to prove intergration The fraud exception Interpretation 59

60. What has been promised? Writing onlyOral Evidence TermsParol Evidence Rule: Burke in Masterman Unintegrated Agreements InterpretationTextualism: WWW v. Giancontieri 60

61. What has been promised? Writing onlyOral Evidence TermsParol Evidence Rule: Burke in Masterman Unintegrated Agreements InterpretationTextualismContextualism Traynor in Pacific Gas 61

62. 62 When does it make least sense to admit oral evidence?

63. 63 When does it make least sense to admit oral evidence?  Idiosyncratic bargains and the court’s information problem

64. 64 When does it make least sense to admit oral evidence?  Idiosyncratic bargains  The alleged oral terms would be harsh and unusual (e.g. cancellation rights in Snyder at 565)

65. 65 When does it make least sense to admit oral evidence?  Idiosyncratic bargains  Harsh terms  Sophisticated parties (e.g. Pacific Gas)

66. 66 When does it make least sense to admit oral evidence?  Idiosyncratic bargains  Harsh terms  Sophisticated parties  Non-standard terms

67. 67 When does it make least sense to admit oral evidence?  Idiosyncratic bargains  Harsh terms  Sophisticated parties  Non-standard terms  Merger clauses

68. 68 When does it make Most sense to admit oral evidence?

69. 69 When does it make most sense to admit oral evidence?  The transaction costs of inclusion? When these are high, courts might be more likely to admit parol evidence

70. 70 When does it make most sense to admit oral evidence?  The transaction costs of inclusion?  Unsophisticated parties

71. 71 Now: Canons of interpretation  Express Terms  Course of performance  Course of dealing  Trade Usage 71

72. 72 Express Terms  Restatement § 203(d) Give greater weight to specifically negotiated over standard terms 72

73. 73 Express Terms  Restatement § 203(c) Prefer specific terms over general terms  Inclusio unius est exclusio alterius 73

74. 74 Canons of interpretation  Restatement § 203(b) Express terms > course of performance, course of dealing, trade usage Course of performance > course of dealing, trade usage Course of dealing > trade usage 74

75. 75 Canons of interpretation  Restatement § 203(b) Express terms > course of performance, course of dealing, trade usage Course of performance > course of dealing, trade usage Course of dealing > trade usage  Snyder p. 565: what was the course of dealing? 75

76. 76 Trade customs  Frigalment p. 585 What were the express terms? 76

77. 77 Trade customs  Frigalment p. 585 What were the express terms? “fresh frozen chicken, Grade A”  Which might have meant? 77

78. 78 Trade customs  Frigalment p. 585 What were the express terms? “fresh frozen chicken, Grade A”  Which might have meant?  “fowl” or stewing chicken, or  “Broiler chicken” 78

79. 79 Trade customs  Frigalment p. 585 What was the trade usage? 79

80. 80 Trade customs  Frigalment p. 585 What was the trade usage?  Higher grade broiler chicken 80

81. 81 Trade customs  Why was the trade usage rejected? 81

82. 82 Trade customs  Why was the trade usage rejected? Seller was new to the trade 82

83. 83 Trade customs  Frigalment p. 585 Who was best able to fix this? 83

84. 84 Sunshine Biscuits at 606  Why a different result? 84

85. 85 Sunshine Biscuits at 606  Why a trade custom about estimates of crops? 85

86. 86 Sunshine Biscuits at 606  What happened to the potato crop?  And why do you think the seller wanted out? 86

87. 87 Interpretation under UCC § 2-202  Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented  (a) by a course of dealing or usage of trade (Section 1- 205) or by course of performance (Section 2-208); and

88. 88 Interpretation under UCC § 2-202  Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented  (a) by a course of dealing or usage of trade (Section 1- 205) or by course of performance (Section 2-208); and  Is this more liberal than the Restatement?

89. 89 UCC § 2-208. Course of Performance  (1) Where the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement.  (2) The express terms of the agreement and any such course of performance, as well as any course of dealing and usage of trade, shall be construed whenever reasonable as consistent with each other; but when such construction is unreasonable, express terms shall control course of performance and course of performance shall control both course of dealing and usage of trade

90. 90 UCC § 1-205. Course of Dealing and Usage of Trade  (1) A course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.  (2) A usage of trade is any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question. The existence and scope of such a usage are to be proved as facts. If it is established that such a usage is embodied in a written trade code or similar writing the interpretation of the writing is for the court.

91. 91 Canons of interpretation  UCC 2-208(2) Express terms > course of performance, course of dealing, trade usage Course of performance > course of dealing, trade usage Course of dealing > trade usage 91

92. 92 Canons of interpretation  Restatement § 203(b) Express terms > course of performance, course of dealing, trade usage Course of performance > course of dealing, trade usage Course of dealing > trade usage 92

93. 93 UCC § 2-208. Course of Performance and Waivers  (3) Subject to the provisions of the next section on modification and waiver, such course of performance shall be relevant to show a waiver or modification of any term inconsistent with such course of performance..

94. 94 UCC § 2-202(a) and waivers  Do several waivers of contractual rights amount to a course of dealing? Would you expect that waivers are frequent amongst relational parties?

95. 95 Columbia Nitrogen 595 95

96. 96 Columbia Nitrogen 595 96 Columbia Royster

97. 97 Columbia Nitrogen 595 Buyer agrees to purchase and seller agrees to furnish quantities … on the following terms… Products Supplied Under Contract Minimum Tonnage per year… 97

98. 98 Columbia Nitrogen 595 98 Columbia Royster Minimum 31,000 tons yr/3 yrs

99. 99 Columbia Nitrogen  Who took the risk of price fluctuations? 99

100. 100 Columbia Nitrogen  Who took the risk of price fluctuations? What did the default clause specify? 100

101. 101 Columbia Nitrogen  Who took the risk of price fluctuations? How was the merger clause drafted? 101

102. 102 Columbia Nitrogen  Who took the risk of price fluctuations? What was the course of dealing where Royster was the buyer? Trade Usage? 102

103. 103 Columbia Nitrogen  Who took the risk of price fluctuations? What was the course of dealing where Royster was the buyer? Trade Usage? Was the express language inconsistent with this? 103

104. 104 Columbia Nitrogen  Who took the risk of price fluctuations? What was the course of dealing where Royster was the buyer? Trade Usage? As between the parties, who was in the best position to predict price fluctuations? 104

105. 105 Columbia Nitrogen  Who took the risk of price fluctuations? What was the course of dealing where Royster was the buyer? Trade Usage? Do you agree with Vic Goldberg at 604? 105

106. 106 Southern Concrete 600 106 Power Plant, Carrolton GA

107. 107 Southern Concrete 600 107 Southern Concrete concrete Mableton

108. 108 Southern Concrete 600  How to distinguish from Columbia Nitrogen? 108

109. 109 Southern Concrete  How to distinguish from Columbia Nitrogen? The equities…? No prior dealing here. Contract default clause? Escalation clause? 109

110. 110 Southern Concrete  How to distinguish from Columbia Nitrogen? The risk was not a change of price but a change in the quantity buyer would need 110

111. 111 Southern Concrete  How to distinguish from Columbia Nitrogen? The risk was not a change of price but a change in the quantity buyer would need  Who is in the best position to determine that? 111

112. 112 Southern Concrete  Evenfield on contractual enforcement Why might a course of dealing not tell us much When is a waiver just a one-shot waiver? 112

113. 113 Southern Concrete  Evenfield on contractual enforcement Suppose waivers can be held against one. Does that mean we’d see fewer waivers? 113

114. 114 Southern Concrete  Evenfield on contractual enforcement Why not put the parties to the election of negativing customs and usages?  Cf. merger clause at 605 114

115. 115 Doppelt, p. 608 Dealer 1 Dealer 2 Consumer 115 Title not to pass to consumer unless Dealer 1 consents

116. 116 The UCC on passing of title  The nemo dat rule of UCC§ 2-403(1) A purchaser of goods acquires all title which his transferor had or had power to transfer …[and in principle nothing more] “Nemo dat quod non habet” 116

117. 117 The UCC on passing of title  The exception for “entrustment” A purchaser of goods acquires all title which his transferor had or had power to transfer … 117

118. 118 The UCC on passing of title  The entrustment exception of UCC§ 2-403(2) (2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business. 118

119. 119 Doppelt, p. 608 Dealer 1 Dealer 2 Consumer 119 Dealer 2 can pass good title to consumer buyer in the ordinary course notwithstanding a secret reservation of title by Dealer 1