Seitenhistorie

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The classic statement of objective doctrine of interpretation is that of J. Blackburn in Smith vs. Hughes made in 1871: “If, whatever, a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that the other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms”

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One of the major consequences of disregarding the subjective intention of the parties in the common law is the presence of the Parole Evidence Rule which states that “if the parties have a final written agreement, no prior oral or written negotiations or contemporaneous oral negotiations are admissible to add to, vary or contradict the writing”.hjjjjj

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 This way of literally interpreting contracts has brought many difficulties to the law executor for several reasons. First of all, the security and the certainty in regard to the objective doctrine are fictitious. The decision whether the contract language is clear or not is not done according to legal rules, but according to the judge’s “feeling”, which leads naturally to uncertainty. What was perceived by one judge as a clear text can be perceived by another as unclear language. Arbitrary distinction of clarity tongue must not be a central standard interpretation of legal text.

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Another reason is that the objective doctrine is different between the internal interpretation (which interpret the contract language without examining the external circumstances) and the external interpretation (which interpret the contract on the base of external elements). No place to check the external elements/evidence regarding the common subjective intention of the parties as the contract language is clear. The inherent difficulty in this interpretation approach is that the clearness of the contract is supposed to be decided only in the end of the interpretation procedure not at the beginning. The clearness of the text should be set according to the interpreter conclusion in the end of the interpretation procedure. Examining the external resources will provide the adequate instruments to decide whether the contract is clear or not.

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