In this November 2011 blog post I discussed how I had belatedly discovered a new category of contract language—language of intention. For the heck of it, here’s something that I just wrote regarding the murky boundaries of language of intention:
If one were strict about it, language of intention would crop up in unexpected places. For example, in the U.S., a court might override the parties’ choice of governing law on the grounds that the state specified doesn’t bear a reasonable relationship to the transaction, or because applying the law of that state would be contrary to public policy. But it would be unduly purist to therefore insist on using for the governing-law provision not language of policy but language of intention: “The parties intend that the laws of the state of New York will govern ….” When the choice specified by the parties in a contract applies unless a court decides that it falls within specified exceptions, stick with language of policy: “The laws of the state of New York govern ….”
