Editors’ Commentary on Chapters 2 and 3 (Language and Structure of Contract Law)

doi:10.1093/acprof:oso/9780198728733.003.0006

Chapter

Editors’ Commentary on Chapters 2 and 3 (Language and Structure of Contract Law)

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https://doi.org/10.1093/acprof:oso/9780198728733.003.0006

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71–74

Published:

December 2015

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Many areas of contract are beset by definitional problems. As a conceptual enterprise the writing of the rules of contract is an important undertaking, but it is just the beginning of the jurisprudential process in which the words are honed, clarified, and confused. The judicial application of rules and the words that embody them can easily lead the ‘neutral’ observer afield. Professor Hogg takes on the task of bringing clarity to the words of contract law—obligation and liability, conditional and contingent, and unilateral and bilateral—that are often conflated. His quest for clarity falls short of a full-fledged disambiguation of our legal concepts, as all such endeavours must given the nature of language. But clarity is relative; much of legal ambiguity can be laid at the feet of human carelessness and laziness in the application of the words of law.

Professor Hogg presents an interesting analysis of part of a larger project on clarifying the fundamental structural language of contract law. As noted above, he explores the misconception of the binary relationship of three key structural pairings found in contract law jurisprudence and scholarship. He asserts that the terms are ill defined in the case law and are assumed by jurists to be based upon ‘shared understandings’. In reality, these illusionary shared understandings are never drawn out in the use of the terms and are merely a device to avoid the definitional problems the words and concepts present. The critic of formalist interpretation sees it as a way of blocking out the vagary of meaning exposed by contextual evidence; the stylistic clarity presented by the courts is a mask for the lack of a shared understanding of the relationships between obligation and liability, conditional and contingent, and unilateral and bilateral. This abdication of definitional responsibilities is more than an issue of style; it goes to the fundamental meanings and substance of contract law. This looseness of meaning works its way back into the actual drafting of contracts, where, for example, the difference between contingent and conditional liability are not always understood by drafting attorneys or can easily be captured through the prism of party intent.

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Contents

Editors’ Commentary on Chapters 2 and 3 (Language and Structure of Contract Law)

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Editors’ Commentary on Chapters 2 and 3 (Language and Structure of Contract Law)

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