Rules of interpretation: the contra proferentem rule
(a) Interpretatio contra eum qui clarius toqui debuisset
There is, however, one rule of construction which, though not incorporated into the BGB, has nevertheless experienced a surprising renaissance in modern German law.
It appears last in the scheme devised by Johannes Bassianus and provides a good example of how isolated utterances of the Roman jurists were able to become the fons and origo of a general rule of law: the interpretatio contra proferentem. "Cum quaeritur in stipulatione, quid acti sit, ambiguitas contra stipulatorem est":[3314] this is how Celsus formulated the idea that in case of ambiguity the interpretation unfavourable to the stipulator has to be adopted. As will be remembered, it was the stipulator who formulated the question which, in turn, determined the content of the stipulation. Any ambiguity was therefore attributable to him, for he could just as well have made it clear what he wanted the other party to promise him.[3315] The underlying idea is that of an "interpretatio contra eum qui clarius loqui debuisset".[3316] It was applied not only to stipulations. "In contrahenda venditione ambiguum pactum contra venditorem interpretandum est":[3317] as far as contracts of sale were concerned, the interpretatio was contra venditorem; and in case of locatio conductio, ambiguum pactum contra locatorem appears to have been the accepted guideline.[3318] The reason is that the (ancillary) terms of a contract of sale (the leges venditionis) were drawn up by the vendor,[3319] and those of a contract of lease (the leges locationis) by the locator.[3320] [3321] [3322] Ambiguitas contra stipulatorem (emptorem, locatorem) appears in a variety of fragments in the Digest; most of them, however, are abstract statements, and examples of its practical application are conspicuously absent.114 The only exception is Pomp. D. 18, 1, 33, where a provision in a sale determining that "flumina stillicidia uti nunc sunt, ut ita sint" was found to be ambiguous, because it was unclear to which flumina and stillicidia it referred. Pomponius gives the following opinion: "[P]rimum spectari oportet, quid acti sit: si non id appareat, tune id accipitur quod venditori nocet: ambigua enim oratio est."120 His answer shows that (at least by the time of classical law) the ambiguity rule was of a merely subsidiary nature: it was to be resorted to if determination of "id quod actum est" had not been possible. "Id quod actum est", however, as we have seen, was a very wide and flexible concept that could refer both to the individual will of the parties concerned and to the more objective and typical features of the contract. It allowed the jurists to read into the transaction what was either objectively or subjectively reasonable. Obviously, under these circumstances, little room was left for subsidiary rules such as ambiguitas contra stipulatorem (venditorem or locatorem).[3323] For all practical purposes, they were on their way out.[3324] [3325](b) The contra proferentem rule in medieval and in modem law
The revival of the ambiguity rule was due to medieval jurisprudence?22. The glossators, first of all, established a general rule of interpretatio contra proferentem: for this is the common denominator of ambiguitas contra stipulatorem, venditorem and locatorem. Bartolus even took the generalization one step further. If the purchaser formulates the leges venditionis, they will usually reflect his interests. The contra proferentem policy is therefore regardful of the fact that "pactum appositum [fuit] gratia emptoris".[3326] [3327] Hence the following reformulation of the rule: interpretatio fit contra proferentem seu contra eum, pro quo profertur.1-5 More often than not, the person who benefits from the special clauses added to the contract is the creditor. Interpretatio contra eum pro quo profertur is therefore often tantamount to interpretatio contra creditorem.[3328] Here one can see how the ambiguity rule may be used in order to protect the position of the one who is perceived to be the weaker party to a contract. It is precisely this function that commended it to modern courts and writers who were desperately looking for devices to combat unfair standard contract terms. Standard contract terms are preformulated by one party and that party does not usually have the interests of his contractual partner at heart. The latter, particularly if he happens to be the ultimate consumer, lacks the economic power to insist on alterations, so as to achieve a fair balance of risk and interest. Individual negotiation is replaced by virtual imposition of a uniform and usually one-sided set of conditions, pushing aside the rules of the ius dispositivum.[3329] It was soon discovered[3330] that private autonomy no longer functions under these circumstances, for even according to "classical" contract theory only a fair bargaining process can be relied upon to produce a fair result. Thus the courts had to step in, but the code had poorly equipped them for this novel task.[3331] It is not surprising, therefore, that they fell back upon the venerable contra proferentem rule,[3332] particularly since that allowed them to achieve a reasonable solution without openly attacking the "idol" of freedom of contract.[3333] But there are grave disadvantages in using rules of interpretation as a means of policing the substantive justice of standard contract terms.[3334] More direct forms of intervention had to be devised, albeit extra or even contra legem. In 1977 the German Standard Terms Act[3335] came into force and, even though it empowered the courts to strike down unfair standard contract terms,[3336] the ambiguity rule was retained. § 5 ABGB represents its most modern statutory version:[3337] "Uncertainty concerning the interpretation of standard contract terms shall be resolved against the proponent." Modern commentators usually stress that great restraint should be observed in the application of this rule.13®37 IV.
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