Rules of interpretation: in general
A second characteristic feature of the literature of the ius commune on the interpretation of contracts is the great variety of special rules and maxims that were collected and put forward, usually on the basis of some more or less isolated texts taken from the Digest.[3300] [3301] Every clause in a contract must be interpreted in the light of all the other clauses, whether they precede or follow it ("Incivile est nisi tota lege perspecta una aliqua particula eius proposita indicare vel respondere": Cels. D. 1, 3, 24), ambiguous clauses must be construed in a sense which will give them some effect rather than render them inoperative ("Quotiens in stipulationibus ambigua oratio est, commodissimum est id accipi, quo res, qua de agitur in tuto sit": Ulp. D. 45, 1, 80) ;[3302] of two possible constructions, the one which is most agreeable to the nature of the contract must be chosen {"Quotiens idem sermo duas sententias exprimit, ea potissimum excipiatur, quae rei gerendae aptior est": Iui. D. 50, 17, 67);[3303] the interpretation of ambiguous terms must be guided by the custom and trade usage of the country in which the contract has been concluded ("Semper in stipulationibus et in ceteris contractibus id sequimur... quod in regione in qua actum est frequentatur": Ulp. D. 50, 17, 34);[3304] a contract is understood to contain the customary clauses, although they may not have been expressly inserted ("... ea enim, quae sunt moris et consuetudinis, in bonae fidei iudiciis debent venire": Ulp. D. 21, 1, 31, 20);[3305] however general the terms of a contract may be, they only apply to matters which were contemplated by the parties at the time of conclusion of the contract ("nam... iniquum est peremi pacto, id de quo cogitatum non docetur":[3306] Ulp. D. 2, 15, 9, 3);[3307] and so on. In an 18th-century German work, we find a hotchpotch of no fewer than 100 different rules of interpretation.[3308] French authors — and their successors—were on the whole more successful in domesticating this casuistic jungle: Domat relates 15, Pothier 12 and Van der Linden merely 9 rules.[3309] The first and most influential attempt to establish a hierarchy of criteria, incidentally, goes back to the glossator Johannes Bassianus: quod actum—ut magis valeat quam pereat—quod verisimilius — contra proferentem.[3310] The scheme was later refined by Hugo Donellus, the main representative of the systematically oriented branch of the humanist school of jurisprudence. The importance attached to special canons of construction in the ius commune is probably a direct consequence of the narrowing down of "id quod actum est" to a purely subjective criterion; for if only the intention of the parties matters, then certain guidelines and criteria are needed to determine their presumed intention where the actual will cannot in fact be established. It is not surprising, therefore, that those who favoured a more objective approach to interpretation, more particularly the natural lawyers,[3311] no longer held on to these canons of interpretation. The drafters of the BGB, too, abandoned them. The interpretation of contracts is dependent upon the individual circumstances of each case and must be undertaken "according to the requirements of good faith".[3312] Within this framework courts of law need flexibility, and general and abstract rules are leading strings of rather doubtful value.[3313] 4.
More on the topic Rules of interpretation: in general:
- Rules of interpretation: the contra proferentem rule
- After having treated, in the first two chapters, the problems of mandatory norms — rules and principles — and of power-conferring rules, purely constitutive rules and definitions, we will now set out to examine permissive sentences.
- 2.2. Second exclusion: Power-conferring rules cannot adequately be understood in terms of definitions, conceptual rules, or qualifying dispositions
- 3. JURISTIC INTERPRETATION
- Communication and interpretation
- Interpretation of conditions
- A short history of legislative interpretation
- Legislative interpretation in the European Court of Justice
- Interpretation in the Statutory Core
- CHAPTER 20 Interpretation of Contracts