http://www.adamsdrafting.com/2009/07/09/contract-interpretation-and-contract-drafting/ Tue, 31 Jan 2012 01:23:03 +0000 hourly 1 http://wordpress.org/?v=abc http://www.adamsdrafting.com/2009/07/09/contract-interpretation-and-contract-drafting/comment-page-1/#comment-92714 Marc Mayerson Tue, 21 Jul 2009 18:33:12 +0000 http://www.adamsdrafting.com/?p=878#comment-92714 The quote from Prof. Burton wrongly states the point of contract interpretation: it is most assured not to ascertain the parties' intent. That would be the 'subjective' theory of contract. We seek to ascertain a reasonable construction of the words of the contract, i.e., the objective theory of contract. The whole "intent of the parties" simply shows that courts are seeking to disguise their exercise of state power by claiming all they really are doing is enforcing what you already agreed to. This is demonstrably false, given that the parties are litigating the question, precisely because the two sides do not have a common understanding of what was required. The quote from Prof. Burton wrongly states the point of contract interpretation: it is most assured not to ascertain the parties’ intent. That would be the ‘subjective’ theory of contract. We seek to ascertain a reasonable construction of the words of the contract, i.e., the objective theory of contract. The whole “intent of the parties” simply shows that courts are seeking to disguise their exercise of state power by claiming all they really are doing is enforcing what you already agreed to. This is demonstrably false, given that the parties are litigating the question, precisely because the two sides do not have a common understanding of what was required.

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