Save a Soul, or, Alternatively, Adventures in Contract Interpretation

May 10, 2010

Noscitur a sociis?  Ejusdem Generis?  Contra proferentem?  Is your high school Latin a little rusty?  Does first-semester contracts seem a world away?

I’ve taken a few calls lately from associates in need of help writing a memo analyzing some pretty muddy provisions.  Don’t panic if you too find yourself being asked to interpret a less than clear-cut contract clause.  Several resources exist to aid in your project.

Williston on Contracts (WILLSTN-CN), Rohwer and Skrocki’s Contracts in a Nutshell (CONTRACTS-NS), and Commercial Contracts Strategies for Drafting and Negotiating (CCSDN) are all contracts treatises offering explanations of the various canons of contract construction.   Simply pull up these treatises and access their Table of Contents (the hyperlink generally located in the upper right portion of the screen unambiguously entitled, “Table of Contents”).  Williston writes about interpretive tools in Chapter 32: “Rules of Interpretation”.  Rohwer and Skrocki discuss them in Part 4: “Contract Interpretation”.  Commercial Contracts: Strategies for Drafting and Negotiating covers this material Chapter 12: “Contract Interpretation and Supplementation”.

To see how the courts in a specific state apply these rules in their interpretive efforts, simply access the case law database for your chosen jurisdiction (i.e. New York Cases or NY-CS-ALL) and run a simple search with your chosen canon in quotes.  For example, a Terms and Connectors search of “Inclusio Unius Est Exclusio Alterius “ in NY-CS-ALL will bring up 83 cases.  Restricting this search to the Court of Appeals by running “co(high) & Inclusio Unius Est Exclusio Alterius” will yield four cases which discuss this specific canon.

Remember these basics and how to find them.  I dare to wager that you could even use these resources to rescue a younger sibling or cousin who may have inadvertently contracted away his or her immortal soul.