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Law Quarterly Review

2018

Language and lawyers

Leonard Hoffmann
Subject: Legal methodology . Other related subjects: Legal systems.
Keywords: Interpretation; Irrebuttable presumptions; Legal history; Legal language; Legal profession;

*L.Q.R. 553 I. Introduction

Do lawyers interpret the use of language differently from the way other people do? Do they have
special rules of interpretation by which users of language are understood to mean something different
from what would be understood by the ordinary person? There was a time when this was certainly
true. But my purpose in this article is to demonstrate both that these rules were irrational and
productive of injustice and that they have been quietly abandoned. Recently, however, there have
been signs of nostalgia. Lord Sumption, for example, regrets the laying aside of "the considered
analyses of generations of careful contract lawyers". 1 This view has some academic support. It is
therefore necessary to explain why the old rules were incoherent and wrong.
Of course lawyers have their own jargon. If you want to know what a fee simple is, you may have to
ask a lawyer, just as you may need a biochemist to help you with the meaning of a patent for a DNA
sequence or a classicist to translate an elegant quotation from Horace. But these are merely uses of
unfamiliar words or, sometimes, familiar words in an unfamiliar sense. Once you have understood
what the words mean, the meaning expressed by the user of those words can be discovered in the
same way as any other utterance. I am concerned with whether lawyers have their own rules for
determining the meaning of an utterance which uses words which may be perfectly familiar to any
user of English.

II. Ordinary Language

I start by drawing attention to some features of the way we use language to convey meaning.

1. The rules of the game

Using language to convey meaning is an activity governed by rules. If you want to tell a speaker of
English that the cat is on the mat, you say "The cat is on the mat". They will know (although perhaps
be unable to parse the sentence) that according to the rules of the English language you may use the
word "cat" to denote an animal of the species felis catus, that "the" is the definite article indicating that
you are referring to a particular cat, that "is" is the present singular of the verb to be, that "on" is a
preposition which in an appropriate context indicates that the object denoted by the preceding noun is
spatially above but contiguous to the object denoted by the succeeding noun, and that "mat" may be a
form of floor covering. These rules are absorbed by those who learn English. They are recorded in
dictionaries and grammar books but will be followed by native speakers of *L.Q.R. 554 English even
if they have never opened a dictionary or grammar. Knowledge of these rules enables speakers of
English to communicate even the most complex ideas.
"The cat is on the mat" is an assertion. It is either true or false. But language may be used for many
other purposes: for example, to ask questions ("Is the cat on the mat?"), give orders ("Put the cat on
the mat"), express wishes ("I would like the cat to be on the mat"), make promises ("I hereby agree to
put the cat on the mat") and so on.2 Philosophers, following J.L. Austin,3 use the term "speech acts" to
refer to all these various ways in which language can be used. "Speech acts" may be oral or in
writing: there is obviously no relevant difference between uttering words by making sounds and
making marks on paper. As "speech" most naturally refers to oral communication, it is a somewhat
awkward terminology for lawyers, who are mostly concerned with the use of language in writing. It is
however a philosophical term of art which I shall from time to time use.

2. The background
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The meaning conveyed by any utterance, whether orally or in writing, always requires a consideration
of both the rules (semantic and syntactical) of the language and the background against which those
words were used. The background may be other parts of the same utterance ("context"), or facts
which the speaker expected the audience to know, assumptions which they expected the audience to
make, and so on. As every utterance is an event which takes place in real life, it always has a
background which may affect the meaning conveyed by the words which the speaker has used.
There can be no speech act without some background. "No one has ever made an acontextual
statement."4
The background enables us to convey meaning with considerable economy of words. The person at
the supermarket checkout can say "That will be eight forty-six" and know you will understand "That
will be" as meaning "The total price for the groceries you wish to buy is", "eight" as referring to
pounds, "forty-six" as referring to pence and implying that if you produce and hand over the
appropriate notes and coin of the realm, you may lawfully take the groceries and go home.

3. Performatives
Some speech acts are not assertions, questions, commands, etc. which can be true or false,
answered or not answered, complied with or not complied with. Instead, the utterance does
something. Uttering the words causes something to happen. Austin, who gave such utterances the
name "performatives", gave as an example "I bet you sixpence it will rain tomorrow." By uttering the
words you have committed yourself (if accepted) to a bet. Performatives are important for lawyers
because many legal documents contain performatives, often signalled by the word *L.Q.R. 555
"hereby". The utterance of the words (or the signing of a document containing them) does something.
It creates legal rights or imposes legal obligations.
Sometimes a performative requires the use of particular words. To take one of Austin’s examples, if
you are asked to launch a new aircraft carrier to be named "Queen Elizabeth", you must, as you
release the champagne bottle, say "I name this ship ‘Queen Elizabeth’. " You cannot say "I name this
ship ‘The Reigning Monarch’", even though, in an assertion, the words "The reigning monarch is 92"
would mean exactly the same as "Queen Elizabeth is 92". But many performatives do not require the
use of particular words. You can say "I promise to repay you the loan next Thursday" or "I assure you
that you will get your money back on Thursday" or any other way of conveying the same meaning. As
we shall see, it is sometimes difficult to decide whether the law requires particular words to be used or
not. Another of Austin’s examples was "‘I do (sc. take this woman to be my lawful wedded wife)’ as
uttered in the course of the marriage ceremony". That was a mistake. The Book of Common Prayer
actually requires the parties to say "I will". But the mistake would not have invalidated Austin’s
marriage. The law does not require the use of the precise words in the Prayer Book. It is enough to
signify consent.

4. Verbal errors
Wittgenstein likened the use of language to playing a game.5 That was a valuable insight into its
rule-governed nature. Just as a move in chess has significance only by virtue of the rules of the
game, so an utterance has significance only by virtue of the rules of language. Apart from those rules
it is simply noise or gibberish. However, Wittgenstein went on to explain that the concept of a game
could not be pinned down by a definition stating a set of necessary and sufficient conditions. Instead,
it encompassed a range of activities which shared a "family resemblance".
There are two differences between the use of language and most games which are particularly
important for lawyers. First, most games require compliance with rules which operate independently
of the surrounding circumstances. In the game of rugby, to score a try, a player must press the ball to
the ground on or beyond the other side’s try line. There are no circumstances which can affect the
meaning of this rule and it does not matter whether you are playing at Twickenham or Newlands. The
meaning conveyed by the use of language, however, is often heavily influenced by context and
background.
Secondly, in a game such as rugby, the only way to achieve the object of playing the game, which is
to score more points than the other side and win, is by compliance with the rules. To convert a try or
score a drop goal, the ball must pass between the posts and over the cross-bar. Nothing else will do.
On the other hand, a person may, within limits, achieve the object of using language, which is to
communicate their meaning, even though that person breaks the rules. They may commit semantic or
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syntactical errors, use words in a sense not authorised by any dictionary and still convey the meaning
intended. The background may sometimes *L.Q.R. 556 enable the hearer or reader to correct the
error and recognise what the speaker (mistakenly) used the words to mean.
Of course the background is not always sufficient to enable the hearer to be confident of knowing
what the words were used to mean. In such a case there may be no option but to say (if the
interlocutor is present) "What did you mean?" or (if not) confess defeat.
I give two illustrations.

i) Mrs Malaprop
Here are some examples of her speech:
"But the point we would request of you is, that you will promise to forget this fellow—to illiterate him, I
say, quite from your memory."
"Now don’t attempt to extirpate yourself from the matter; you know I have proof controvertible of it."
"Oh, there’s nothing to be hoped for from her! she’s as headstrong as an allegory on the banks of
Nile."
What is the background which enables us to make sense of Mrs Malaprop? It is the existence of other
words in the English language which the audience would (at any rate, in 1775) be expected to know,
which sound rather like those used by Mrs Malaprop and have conventional meanings which would
enable her sentences to make sense. So they would substitute "obliterate" for "illiterate", "extricate"
for "extirpate" and "alligator" for "allegory". This background enabled them to understand what Mrs
Malaprop was (incorrectly) using the words to mean.
On the other hand, there may nowadays be people insufficiently familiar with 18th century vocabulary
to make or understand the necessary substitutions.6 As they cannot stand up in the theatre and ask
Mrs Malaprop what she meant, her use of the words will fail to convey meaning.

ii) Roger and Mary

John meets Roger, the former managing director of a company for whom John worked five years
earlier and whom he has not seen since. After asking after John’s current career, Roger says "And
how is Jane?" John realises that he is referring to John’s wife but has forgotten that she is actually
called Mary. To avoid embarrassment, John says "Fine, thank you" and the conversation moves on.
The background here is that people frequently make polite inquiries about an interlocutor’s spouse or
partner and John cannot think of any other woman associated with him about whom Roger might wish
to inquire. If Roger had said "And how is Alexander?" and there had been several men in John’s
department with whom he had been friendly, none of whom was called Alexander, he would have had
to say "Whom do you mean?" *L.Q.R. 557

5. Implied speech acts

Consider these two examples.

i) Rugby match
David and Hugh are Welsh rugby fans living in London. They are both going to Cardiff to see Wales
play South Africa at the Principality Stadium. David tells Hugh that he proposes to go by train. Hugh
replies: "I am going by car. Would you like a lift?"
Has Hugh promised that after the game, he will bring David back again? He has not expressly said
so. But David would be entitled to understand the offer to mean that he would also be taken home
after the game, and to feel aggrieved if, after the game, Hugh revealed that he was not going back but
proposed to go on to Swansea and spend a few days with his aunt. In the absence of express
disclaimer, he has made an implied promise to bring David back.

ii) Wigmore Hall

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Robert is a Friend of the Wigmore Hall and entitled to priority booking. His friend Matthew has come
to dinner and they are talking about a forthcoming recital by Sir Andras Schiff. Matthew says "I think it
will be sold out before the general booking opens. Do you think you could get me a ticket?" Robert
says "Yes, certainly."
Has Matthew promised to pay Robert the price of the ticket? He has not used any words from which
one could derive such a promise. But the background (that he would have bought one himself if it had
not been likely to sell out, that there was no reason why he should expect a gift) is sufficient to create
an implied promise. Robert would be entitled to assume that by using the words of his request (which
is all that Matthew has done) he meant that he would pay for the ticket. If the background had been
different (for example, if the request was from Robert’s 15-year-old son) no such promise would be
implied.

6. Word meaning and speaker meaning

The foregoing discussion shows that it is essential to distinguish between the meaning of words
("word meaning") and what a speaker or writer means (or is understood to mean) by using those
words ("speaker meaning"). "Word meaning" is a reference to conventional rules. Dictionaries will list
the current conventional meanings of words, although some of these change from time to time.
Likewise with syntax and books on grammar. These conventions and the background are what
enable us to understand what a speaker means by using words and, as we have seen in Mrs
Malaprop and Roger and Mary, to understand that speaker even when they have used the wrong
words. What they mean by using the words is "speaker meaning". The distinction between word
meaning and speaker meaning has been a commonplace of discussions of the philosophy of
language for many *L.Q.R. 558 years.7 In an essay discussing Mrs Malaprop, the late Professor
David Donaldson said: "I take for granted …that nothing should be allowed to obliterate or even blur
the distinction between speaker’s meaning and literal meaning". 8 The distinction between word
meaning and speaker meaning is important for lawyers, because judges sometimes say things like:
"The question … is not what was the intention of the parties but what is the meaning of the words they
have used?" Such remarks may give the impression that questions of interpretation can be solved by
consulting a dictionary and ascertaining the "word meaning". But that is plainly not the case. The
object of interpretation has always been to ascertain speaker meaning, even when that quest was, as
we shall see, hobbled by artificial legal constraints.

III. Legal Interpretation

How do the rules of legal interpretation alter the way we interpret documents and other utterances?
The main difference is said to be that whereas in ordinary life we are usually trying to understand
what the speaker or writer meant by using the words uttered or written, what was subjectively in their
mind, the interpretation of a legal document is objective; we ask what a reasonable person would
have understood by the use of those words. Sometimes this objectivity is inevitable because the
utterer or writer is purely notional. Lawyers speak of "the intention of Parliament" but there is no
question of asking the members of both Houses who voted for the Bill and Her Majesty the Queen
who signed it what they had in mind by their consent to the statutory language. They might give
altogether different answers. All one can do is ask what a reasonable person who knew the
admissible background would have understood the notional author to have used the words to mean.
The same is true of the interpretation of a contract, when we speak of "the intention of the parties"
(who might have had different notions of what the contractual language was intended to mean) but
ask what a reasonable person who knew the admissible background would have understood the
language of the contract to mean.
This objectivity of interpretation is applied not only to documents treated as the utterance of a notional
author but equally to unilateral utterances, such as a will, patent specification or notice. In each case
one asks what a reasonable person knowing the admissible background would have understood the
language to have been used to mean.
How does this differ from the way we interpret utterances in ordinary life? In ordinary conversation,
the only material which we, as persons to whom the utterance is addressed, can use to fathom the
speaker’s subjective intention is the outward appearance of the words used against the relevant
background. Thus ordinary life is usually also concerned with outward appearances. The question is
normally what the person to whom the utterance was addressed would have understood it to mean. In
my example, Rugby Match, we would think David entitled to feel aggrieved if Hugh went off after the
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game and left him to find his own way back *L.Q.R. 559 from Cardiff. We would not regard it as an
excuse for Hugh to say: "In my own mind, I was not committing myself to more than taking him there."
We do not have windows into other people’s minds and therefore life can only be carried on by relying
on the outward meaning of what they are saying. Of course one can say "Is that what you really
mean?" or "Can we just make this clear?", but that would only be to invite a further utterance which
must also be interpreted. It does not mean that we are not in each case having to rely on the outward
meaning of the utterances.
The only real difference between the interpretation of utterances in ordinary life and in the law lies in
the assumptions which the law makes about the person to whom the utterance is taken to be
addressed. Some people are better at understanding than others, more perceptive of nuances in the
use of language. Uncle George may say something which offends a stranger but his nephew, familiar
for many years with his style of conversation, may say "Don’t mind him. Uncle George never means
these things literally". The law attempts to achieve a uniform standard of interpretation by assuming
that the person to whom the utterance is addressed will be a "reasonable" person, which in practice
usually means the judge. Perhaps more important, the law also prescribes the background of which
the reasonable person is assumed to have knowledge. This eliminates the real life situation in which
one person has more background (such as familiarity with Uncle George’s conversational style) than
another. In the case of a contract, the reasonable person is assumed to know everything which would
reasonably have been available to both parties at the time of the contract, with the exception of their
prior negotiations and their statements about what they intended.9 The reasonable interpreter of a
patent specification is assumed to know everything which would have been common general
knowledge among persons "skilled in the art". This may require the judge to be informed of such
matters and have them explained to him or her. Sometimes the law on admissible background
changes. For the interpretation of a statute, it used to be assumed that the reasonable person did not
know what had been said in debate during the passage of the Bill through Parliament. In 1992 the
House of Lords changed the law and Hansard’s reports are (for what they are worth, which usually is
not much) now part of the admissible background.10
There is another important difference between the background to most legal documents and informal
everyday utterances which is not prescribed by any rule of law but is simply a matter of common
sense. It is that legal documents are intended to create legal rights and duties. They have usually
been drawn up by lawyers. In the case of contracts, there will often have been negotiation of terms
and drafts will have passed to and fro. Lawyers are paid to draft documents without ambiguity, use
words in their dictionary meanings, adhere to conventional syntax and not leave anything important
out. Even if they have not been drafted by lawyers, people who enter into legal obligations would be
expected to take the matter seriously. So the reasonable man interpreting a legal document starts
with a strong presumption, based on this background, that the document does not contain any
*L.Q.R. 560 linguistic mistakes or leave important things out. If the result looks rather odd, e.g.
unduly favourable to one of the parties, there must be some other explanation: perhaps simply that
the other party did not notice how favourable it was. The exclusion of prior negotiations from
admissible background reinforces this presumption against linguistic mistakes. But there are no rules
of law which require legal documents to be interpreted differently from other utterances. Their legal
character is simply an important part of the background to the language which they use.
None of these differences between interpretation in ordinary life and legal interpretation affects the
principle that any interpretation of any utterance is an inquiry into speaker meaning and not solely into
word meaning. Indeed, it would be a category mistake to speak of interpretation as an exercise into
discovering word meaning. Dictionaries and grammars record the rules of language but the law has
always recognised that these are only part of the material needed for interpretation. The law may
determine the limits of admissible background but that background will always play some part in
determining what the speaker or notional author used the words to mean. That is speaker meaning.

1. Performatives in law
Almost all legal documents contain performatives. A deed or contract may start with one or two
recitals, setting out some of the agreed background, and then continue with words such as "now this
deed witnesseth" or "it is hereby agreed" followed by the words which actually transfer property or
create legal rights and obligations. Sometimes a performative requires the use of particular words, for
example, the use of the words "and his heirs" in an old conveyance of the fee simple. The Roman
jurist Gaius provides a neat illustration of this distinction in a passage in which he complains of the
technicalities of the old lawyers.11 The ancient Twelve Tables created a legis actio (statutory action)
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de arboribus succisis (concerning the cutting down of trees). Gaius tells us that someone who wanted
to sue for the cutting down of his vines lost his case because he pleaded it as being for the cutting
down of vines (in actione vites nominaret) instead of the cutting down of trees. As Professor Daube
has pointed out,12 he lost his action not because it was for vines, but because he did not call them
trees. To invoke the action, you had to say "trees" just as you had to say "Queen Elizabeth" to name
the ship. But if you used the right word, the old jurists (veteres) would have given the word a liberal
interpretation which included vines.
A similar point arose in the case of Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd .13
A lease provided that if the tenant wanted to terminate it early, he could do so by giving the landlord a
notice "to expire on the third anniversary of the term commencement date". The third anniversary was
13 January 1995. The tenant gave a notice expressed to expire on 12 January 1995. The first
question in the case was therefore whether the lease required the notice to use the words "13
January 1995". If it had (e.g. because it had said that the notice must be "expressed to expire on the
date which is the third anniversary of the term *L.Q.R. 561 commencement date"), it would have
been invalid. The notice would have had to name the right date. But a majority of the House of Lords
held that the lease did not require any particular words. It only required that a reasonable landlord
would have understood the notice to mean that it was to expire on the third anniversary of the
commencement date. The second point was whether it could have such a meaning despite having
actually named the wrong date. The House held that it could because it would have been obvious to
the landlord that the tenant wanted to exercise his right to terminate on the third anniversary of the
commencement date and that his naming the wrong date was a mere linguistic slip.

2. Verbal errors in law

Mannai Investment is an example of the court giving effect to the meaning which a document would
objectively convey to a reasonable person to whom it was addressed notwithstanding that it contained
a verbal error. Investors Compensation Scheme Ltd v West Bromwich Building Society 14 and
Chartbrook v Persimmon Homes Ltd 15 were later examples. But such cases are rare. This is for two
reasons. The first, as I have already said, is that we do not easily accept that documents intended to
create legal obligations (as opposed, for example, to television interviews with celebrities) contain
verbal errors. The second is that many legal documents, contracts in particular, are performatives,
creating legal obligations to be performed in the future. In Mannai , it was easy to see that the tenant
had got it wrong. The only question was whether it would have been obvious to the reasonable
landlord that he had got it wrong. As the landlord had a copy of the lease, it was not difficult to find
that he would. Or if someone makes an assertion about a past event and says, for example,
"Kennedy held his nerve in the Cuban missile crisis of 1964", it is easy to say that he must have
meant the Cuban missile crisis of 1962, because there was no such crisis in 1964 and Kennedy was
dead. But a contract creating obligations to be performed in the future will seldom contain factual
errors of this kind. There is usually no obvious reason why a party should have assumed one
obligation rather than another. The terms of the contract may look very favourable to one party or
different from what one would ordinarily expect in that line of business, but that is no reason why the
parties should not have agreed to such terms. One of the parties may have made a mistake about the
burden which those obligations would create or simply not thought about the matter carefully enough.
Sometimes a reference to prior negotiations would have shown that there had been a linguistic error
in recording the terms of the contract, but such evidence is inaccessible to the court of construction
and can be deployed only in a claim for rectification.
In practice, the only cases in which the courts have felt able to correct verbal errors in the
performative provisions of contracts is when the conventional meaning of the words produces a result
which, either in relation to other parts of the document or in its application to the facts, is irrational and
when it is clear what the language must actually have been intended to mean. ICS and Chartbrook ,
for the reasons there given, were both cases of this kind. *L.Q.R. 562

3. Implied speech acts in law

In legal drafting, as in ordinary life, "often we mean more than we actually say". 16 Rugby Match and
Wigmore Hall are examples of statements ("I am going by car. Would you like a lift?" and "Do you
think you could get me a ticket?") which carry the additional meanings of "and I will bring you back"
and "and I shall pay you for it" respectively. In the law of contract these additional meanings are called
"implied terms". They are implied into legal documents because on a reading of the contract as a
whole against the admissible background, a reasonable reader would have considered that was what
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the parties must have meant despite not having actually said so.17
There has grown up a certain mystique about the "tests" by which a court can decide whether a term
should be implied. So, in one case, it was said that:
"The implication which the law draws from what must obviously have been the intention of the parties,
the law draws with the object of giving efficacy to the transaction". 18
In another, it was said that it had to be "something so obvious that it goes without saying", such that:
"if, while the parties were making their bargain, an officious bystander were to suggest some express
provision for it in their agreement, they would testily suppress him with a common ‘Oh, of course!’" 19
Neither of these formulations is wrong or misleading, but "obviously the intention of the parties" and
"so obvious that it goes without saying" seem to me either other ways of saying, or reasons for
saying, that this is what a reasonable person, reading the contract against the admissible
background, would have understood that it must mean.
What is the difference between implied speech acts in ordinary life, such as Rugby Match and
Wigmore Hall, and implied terms of contracts? There is usually an important difference in background,
namely that, whereas in ordinary life people often speak elliptically, lawyers by their training are not
expected to leave things out. They dot i’s and cross t’s. If the parties to Wigmore Hall had decided to
have their agreement drawn up by a lawyer, it would probably have come out something like this:
"Robert and Matthew hereby agree that Robert will use his best endeavours to obtain a ticket to the
Schiff recital for Matthew during his priority booking period and, if he is successful, deliver it to
Matthew at the latest by the night before the event, and Matthew agrees that within a reasonable time
thereafter he will pay Robert the amount which he paid for the ticket. *L.Q.R. 563 "
Thus a submission that a term should be implied into a legal document is much more open to the
retort "if that was what it was intended to mean, why didn’t it say so" than when we understand people
to have meant more than they say in ordinary conversation. An important element of the background,
viz. that it was intended to be a legally binding document, is different.
20
In Philips Electronique Grand Public SA v British Sky Broadcasting Ltd Sir Thomas Bingham M.R.
said:
"The courts’ usual role in contractual interpretation is, by resolving ambiguities or reconciling apparent
inconsistencies, to attribute the true meaning to the language in which the parties have expressed
their contract. The implication of contract terms involves a different and altogether more ambitious
undertaking: the interpolation of terms to deal with matters for which, ex hypothesi, the parties
themselves have made no provision. It is because the implication of terms is so potentially intrusive
that the law imposes strict constraints on the exercise of this extraordinary power."
These remarks are sound in instinct and based on long experience of listening to submissions as to
why terms should be implied into contracts. But they need some analysis. Why is implying a term
"more ambitious" than interpretation of the words actually used? Surely because interpretation of the
words usually involves a choice between perfectly legitimate uses. But when a court is asked to imply
a term, it is being asked to say that, although it is a legal document which would be expected to deal
expressly with all matters of any significance, something which could have been said expressly has
been left out. That is why the courts have always applied what they have called a "test of necessity".
They will imply a term only if satisfied that it is what the agreement must mean. Not "might mean" or
"should reasonably have meant" but must mean.
The Supreme Court in Marks and Spencer Plc v BNP Paribas Securities Services Trust Co (Jersey)
Ltd 21 seems to me, if I may be forgiven for saying so, to have made rather heavy weather of these
practical differences between interpreting the meaning given to a document by the use of particular
words and interpreting a documents as meaning more than its words say. There was, said Lord
Neuberger, a conceptual difference between construing the meaning of the words used in the
contract and implying a term. They were:
"different processes governed by different rules … When one is implying a term or a phrase, one is
not construing words, as the words to be implied are ex hypothesi not there to be construed". 22
This flies in the face of our experience of the way language is used. When Matthew said "Do you think
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you could get me a ticket?" the reasonable interlocutor would have understood him impliedly to
promise to pay for the ticket. But all that Matthew has done is to utter those nine words against a
background of societal expectations; for example, that if you ask someone to do you a favour which
*L.Q.R. 564 involves some expense, you are usually expected to reimburse them.23 This background
makes us "interpret" or "construe" his utterance as carrying the meaning that they promise to pay for
the ticket. It is not the case that if there are no words, there can be no meaning. People often mean
more than they say. If the implied term is not something which the contract means, where does it
come from?

IV. The Old Rules of Construction

1. The 19th century

In the 19th century, judges constructed artificial rules of interpretation by which certain words or
expressions in legal documents were sometimes conclusively presumed to have been used with
certain meanings, and evidence of background which showed that they had been used with a
different meaning was excluded. If the words were capable of being understood in more than one
sense, evidence of background was admissible to show which sense the reasonable person would
have understood was intended. If the words "in themselves" appeared fairly clear but an examination
of the facts to which they referred showed that they were capable of being applied in more than one
way, evidence was likewise admissible. So in Charrington & Co Ltd v Wooder 24 a lease of a tied
public house contained a covenant by the brewery to sell the publican beer "at the fair market price".
The background showed that there were two market prices: free houses got better discounts than tied
houses. The House of Lords held that the market price for tied houses had been intended. Under the
old rules, however, the construction given to the term in question had to be an "admissible meaning"
of the words. It had to be capable of being regarded as within the possible conventional meanings of
those words.
The 19th century judges could not accept that background evidence could be admissible to show that
the reasonable person would have considered that the actual or notional author had made a linguistic
mistake. The rule was clearly stated by Tindal C.J. in Shore v Wilson ,25 a case on deed creating a
charitable trust:
"The general rule I take to be, that where the words of any written instrument are free from ambiguity
in themselves, and where external circumstances do not create any doubt or difficulty as to the proper
application of those words to claimants under the instrument, or the subject-matter to which the
instrument relates, such instrument is always to be construed according to the strict, plain, common
meaning of the words themselves; and that in such case evidence dehors the instrument, for the
purpose of explaining it according to the surmised or alleged intention of the parties to the instrument,
is utterly inadmissible. If it were otherwise, no lawyer would be safe in advising upon the construction
of a written instrument, nor any party in taking under it; for the ablest advice might be controlled, and
the clearest title undermined, if, at some future period, parol evidence of the particular meaning which
the party *L.Q.R. 565 affixed to his words, or of his secret intention in making the instrument, or of
the objects he meant to take benefit under it, might be set up to contradict or vary the plain language
of the instrument itself."
Tindal C.J.’s view appears to have been that if the "strict plain common meaning of the words" was
capable of application without "doubt or difficulty" to external circumstances, no evidence was
admissible to show that the author had made a linguistic error—used the wrong word, name or
description. The author was irrebuttably presumed to have used the words in their plain common
meaning. The judge seems to have thought that if such evidence was admissible, it was bound to be
evidence of the "particular meaning which the party affixed to his words" or "his secret intention", to
which the person giving the "ablest advice" on construction would not have had access. He does not
appear to have considered the case in which, without any inquiry into subjective intentions, the
background available to the reasonable person to whom the instrument was taken as being
addressed would clearly have demonstrated to them that it must contain a linguistic mistake.
It is not easy to find cases of contracts to which the old principles were applied actually to exclude
evidence which would have produced a different result. That may be because, as I have said, it is
very unusual without reference to prior negotiations to be able to detect a linguistic mistake in the
performative provisions of a contract drafted by lawyers. Cases like ICS and Chartbrook are rare. In
the interpretation of wills, however, these principles were rigorously applied. In Grey v Pearson 26 Lord
 Page9

Wensleydale restated the principle:

"In construing wills and indeed statutes, and all written instruments, the grammatical and ordinary
sense of the words is to be adhered to, unless that would lead to some absurdity, or some
repugnance or inconsistency with the rest of the instrument, in which case the grammatical and
ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no
farther … The will must be in writing, and the only question is, what is the meaning of the words used
in that writing. To ascertain which every part of it must be considered with the help of those
surrounding circumstances, which are admissible in evidence to explain the words, and put the Court
as nearly as possible in the situation of the writer of the instrument, according to the principle laid
down in the excellent work of Sir James Wigram on that subject."
The main protagonist of this system of irrebuttable presumptions was, as Lord Wensleydale
observed, Sir James Wigram, whose "excellent work" was the Examination of the Rules of Law
respecting the Admission of Extrinsic Evidence in aid of the Interpretation of Wills, published in 1831,
with four subsequent editions.27 Proposition II read:
"Where there is nothing in the context of a will, from which it is apparent, that a testator has used the
words in which he has expressed himself in any *L.Q.R. 566 other than their strict and primary
sense, and where his words so interpreted are sensible with reference to extrinsic circumstances, it is
an inflexible rule of construction, that the words of the will shall be interpreted in their strict and
primary sense, and in no other, although they may be capable of some popular or secondary
interpretation, and although the most conclusive evidence of intention to use them in such popular or
secondary sense be tendered."
The "context of the will" meant only the rest of the will and not anything extrinsic to the will. "[S]ensible
with reference to extrinsic circumstances" meant only that there was something to which the language
in its "strict and primary sense" could apply. It did not mean that it had be sensible to give the
language that meaning. Wigram offered Doe d. Oxenden v Chichester 28 as a case in which his
principle had been "carried to its full extent". 29 The testator devised his "estate of Ashton" to
Oxenden. He had an estate which he used to call his Ashton estate. The accounts of the whole
property were kept under the name of "the Ashton estate". However, only part of it was "locally
situated" at Ashton. The rest was technically in the next parish. Furthermore, said Sir James:
"the most conclusive evidence of intention to devise the whole estate, which the testator used to call
his ‘Ashton estate’, and not that part only which was locally situated at Ashton, was tendered. The
court however was of opinion that the words ‘estate of Ashton’, strictly interpreted, were descriptive of
an estate locally situated at Ashton; and as there was an estate locally situated there, the evidence
was rejected".
The decision was affirmed by the House of Lords30 and Sir James cited this atrocity with some pride.
If, however, the beneficiaries had been fortunate enough for the testator to have made an even bigger
mistake and had no land at all which was "locally situated at Ashton", there would have been no
problem about receiving the "conclusive evidence" that he intended to devise what he called his
Ashton estate. Presumably the judges would have been embarrassed at having to say that, as there
was nothing which answered to the "strict and primary sense" of the words, the devise simply failed.
So they were willing at that point to abandon their irrebuttable presumptions. But there was no logic,
consistency or common sense in the rule.
Another illustration of the way the irrebuttable presumptions could make nonsense of meaning was In
the Goods of Peel.31 The testator appointed "Francis Courtenay Thorpe, of Hampton … Middlesex" to
be his executor. There was a Francis Courtenay Thorpe of Hampton, Middlesex. He was however
only 12-years-old and his father Francis Corbet Thorpe, of Hampton, Middlesex, was an old friend of
the testator. Lord Penzance thought it was an obvious mistake but held that evidence of the boy’s age
or the testator’s relationship with his father was inadmissible. There was an irrebuttable presumption
that he meant the person to whom the name strictly applied. *L.Q.R. 567
Wigram appeared to regard the names or descriptions of people or things not as a matter of
convention ("They call me Mimi, but my name is Lucia") but as properties of the person or thing, like
his height or its geographical co-ordinates. In Anstee v Nelms 32 a testator devised "my lands in the
parish of Doynton". Everyone regarded his whole estate as being in the parish of Doynton and treated
it as such, but research into the records showed that part was actually in the parish of Wick. The
Court of Exchequer decided that all the estate passed under the will. Bramwell B. said:
 Page10

"What is the primary significance of the words ‘in the parish of Doynton’? ‘which shall be proved to be
in Doynton’ or ‘commonly reputed to be in Doynton’? I hold the latter to be the natural meaning of the
words."
Wigram thought this was heresy:
"‘The holding of Bramwell B.’ he said ‘can scarcely, it is conceived, be reconciled with any imaginable
test by which the strict and primary meaning of a testator’s words can be ascertained’". 33
This view, that people or things can "properly" be identified only by their "true" names and
descriptions, irrespective of the names people actually use; that they are properties of the thing
described and not merely conventional words, was neatly satirised by Aldous Huxley in his account of
a farmer looking at the inhabitants of a sty wallowing in the mud and saying "Rightly is they called
pigs". 34

2. Decline and fall of the old rules

In Re Morgan 35 the Court of Appeal was faced with authority going back to 1725 for the proposition
that the "strict and proper sense" of the word "money" was cash or a credit at a bank. Accordingly a
bequest of "all monies of which I die possessed" in a home-made will could not cover investments or
other property. The remaining assets, which constituted 98% of the estate, passed on intestacy. The
comments of Lord Greene M.R. are worth quoting:36
"I have reluctantly come to the conclusion that we are bound to apply a rule of which it has been said
more than once by judges, members of the profession and laymen, that it defeats the intention of the
testatrix. Indeed, if I may add my own comment upon it, I think it is not too strong an expression to
use to say that it is a blot upon our jurisprudence. The rule is, and it has been laid down on many
occasions, that the word ‘money’ in a will must be construed in what is called its strict sense, unless
there is a context which permits of an extended meaning being given to it. The strict sense of ‘money’,
curiously enough—and this is one of the anomalies about this rule,—is a sense which has been
invented by the courts, and invented, I think, partly in order to get rid of the rigours of the rule which
would have existed if the word ‘money’ *L.Q.R. 568 had been confined to actual cash,—which, no
doubt, was the original meaning. That was felt by the courts to be going too far, so they have invented
a special category which they have called ‘money in the strict sense’, which includes money not in
any strict sense, because it includes choses in action, such as moneys on drawing account at a bank.
But that category is closed, and we cannot extend the language unless there is a context permitting
such a course. In the present case I am afraid that I cannot find such a context."
This decision was reversed by the House of Lords,37 holding that the court was not limited to the
"strict and primary sense" of the word (whatever that might be). The background (Lord Atkin
mentioned "the age and education of the testator, his relations to the beneficiary chosen, whether of
kinship or friendship, the provision for other beneficiaries, and other admissible circumstances")38
could show that the word was being used in a "popular or secondary sense". No one mentioned
Wigram’s Proposition II. In 1997, Investors Compensation Scheme Ltd v West Bromwich Building
Society 39 established that the background might show that words were being used not merely in a
popular or secondary sense but even in a syntactically wrong sense. Finally, in Marley v Rawlings 40
the Supreme Court decided that wills should be interpreted no differently from any other document, in
accordance with the principles in the ICS case. The Wigram propositions appeared to have been
interred.

V. Wigram Redivivus: Lord Sumption

1. Irrebuttable presumptions
Lord Sumption has argued forcefully for a return to the old rules. It is not enough, he says, for there to
be "no more than a rebuttable presumption that people mean what they say in legal documents". 41
"Mean what they say" is a rhetorical way of saying "intend what they say to be understood in its
conventional dictionary or grammatical sense". So Lord Sumption wants an irrebuttable presumption
that the author of a document has used language in its strict and primary sense, irrespective of the
strength of background evidence which shows that this could not have been the case. This would be
a return to Wigram.
Lord Sumption’s reason for having such a rule is that judges would otherwise be tempted to ignore
 Page11

the language used by the parties in favour of what, given the background, they considered to be
terms which the parties should reasonably have agreed. He says that the effect of the ICS principles
is that:42
"The background may be used to show that the parties cannot as reasonable people have meant
what they said, so that the court is entitled to substitute something else. Lord Hoffmann does not spell
out how we are to discover *L.Q.R. 569 what else they meant if it was not what they said. But the
only plausible answer to that question is that the parties are taken to have intended whatever
reasonable people would have intended even if it is not a possible meaning of the words."
Let us analyse what this means. It is true that the background may show that the parties as rational
people cannot have intended their language to bear its conventional semantic or syntactical meaning.
In such a case the court is entitled to substitute something else. It is not the case, however, that ICS
does not "spell out" how we discover what else they meant and it is certainly not the case that they
are "taken to have intended what reasonable people would have intended". Lord Sumption gives the
impression that he thinks (like Lord Neuberger in Marks and Spencer Plc v BNP Paribas Securities
Services Trust Co (Jersey) Ltd ,43 a decision to which Lord Sumption was a party) that without
appropriate words there can be no meaning. It is however a matter of everyday experience that
people can convey meaning though using the wrong words or without any relevant words at all. ICS
makes it clear that the court can substitute something else only if it is clear from the language and
background that it is the meaning which a reasonable person would have understood the parties to
have intended. It is important to note that "the reasonable person" is the notional audience, not the
notional parties. The reasonable audience will expect parties to a legal document to have said
something which, against the available background, makes rational sense, but will not necessarily
expect them to have been reasonable in the sense of being fair to each other. It does not matter
whether that meaning would have been in some commercial sense "reasonable" or not. When Mrs
Malaprop says "allegory" we substitute "alligator" because that was obviously the meaning she
intended, without inquiring into whether it was a reasonable thing to say about her niece Lydia.
As an example of a case which employed what he considers to be an heretical method of
construction, Lord Sumption cites the decision of the House of Lords in Chartbrook Ltd v Persimmon
Homes Ltd ,44 in which the House unanimously affirmed the dissenting opinion of Collins L.J. in the
Court of Appeal. Lord Sumption considers that this case was wrongly decided. Persimmon, a builder,
bought land from Chartbrook to build flats. There were potentially two elements to the price: a fixed
price for the land ("land price" or "LP", which had been calculated as a percentage of the estimated
sale price of the flats) and an additional sum ("AP") which might or might not be payable contingently
upon the price at which Persimmon actually sold the flats ("flat price" or "FP"). AP would be payable if
FP exceeded a base figure. The question was: what was that base figure? If one read the contract
literally, the base price was expressed to be LP, and AP was expressed to be 23.4% of (FP – LP).
That meant that if the flat was sold for more than the minimum price agreed for the land, the
"additional sum" would become payable. Chartbrook would be entitled to an additional 23.4% of the
difference between the price it had received for the land and the price for which the flat was sold. This
made no sense: first, because it was not comparing like with like (comparing the flat price with the
land price) and secondly because it made nonsense of provisions which implied that AP might not be
payable at all. It was *L.Q.R. 570 hardly possible that the parties contemplated that the flat would be
sold for less than the price of the land on which it had been built. It was impossible to understand why
the price of the land, which was obviously a carefully calculated proportion of the sum for which it had
been estimated that the flats could be sold, should be chosen as a base figure for this altogether
different purpose. On the other hand, it was easy to see what the parties must have meant, namely,
that an additional sum would be paid if the flat sold for more than the sum of which the LP was 23.4%.
That would be comparing like with like: estimated flat price with actual flat price. The seller would then
receive 23.4% of the increase. That would have been a rational provision to allow for the possibility
that, in the rising market of the day, the flats might have sold for more than the parties expected.
Lord Sumption said of this case:45
"It is true that [the contract] was not garbled. The sentences used intelligible words, including
subjects, verbs and objects. There was no apparent error of drafting. But Lord Hoffmann
reconstructed the commercial logic of the transaction on the assumption that it was highly unlikely
that land values would fall. From this, he concluded that on the developer’s construction the result
was more favourable to him than the parties can have intended. The result may well have been just,
but I have some difficulty in recognising it [as] a process of construction. Moreover, if the case had
been decided two decades earlier, when property values were indeed falling fast, it may be that Lord
 Page12

Hoffmann’s view about the parties’ expectations would have been different."
It will be apparent to anyone who has read the speeches of Lord Collins, Lord Walker of
Gestingthorpe and myself that this is a somewhat misleading summary of the reasons for the
decision. The literal meaning was not rejected because the result was more favourable to Chartbrook
than reasonable commercial parties could have intended. The question is what a reasonable person
would have understood the words to mean, but such person does not assume that the contract must
have been in any sense "reasonable". That person does however expect that in an important
document the parties have used words in a sense which is rational and not self-contradictory. In this
case, given the "apples and pears" comparison made by the literal meaning, and the contradiction
with the clear provisions indicating that AP might or might not become payable, it was irrational; and
furthermore it was obvious to a reasonable objective person what the parties must actually have
meant. The fact that the language was "not garbled" in the sense that without any evidence of the
background, a reader might not recognise any mistake, is neither here nor there. It shows a confusion
between word meaning and speaker meaning. Lord Sumption believes that words used in a speech
act have an "autonomous meaning". But this is a fallacy. Words have conventional meanings but you
can only understand what they were used to mean if you know the context in which (i.e. background
against which) they were used.
As for the fall in property values, it is true that between the end of 1988 and the end of 1992 the
Nationwide House Price Index for houses in London fell from *L.Q.R. 571 141.3 to 99.64, an average
fall of about 9% a year. At the time of the contract, however, prices were not "falling fast". They were
rising strongly. On the literal meaning of the contract in this case, the parties must nevertheless have
contemplated that the prices of the flats might fall 76% between the time of the contract and the time
they were built and sold.
It is true that the Procrustean approach to meaning embodied in a system of irrebuttable
presumptions removes the opportunity for some judges or arbitrators to ignore the meaning which the
reasonable person would have taken the parties to have intended and substitute a meaning which is
in a general sense more fair and reasonable. There is obviously a vital distinction between linguistic
errors and errors about the effect which the agreement might have. Often the correct conclusion is
that the parties meant exactly what their words would conventionally mean, but did not realise that a
fall in the market or some concatenation of circumstances would have disastrous consequences. But
the courts are alive to this distinction. As Carnwath L.J. pithily put it in ING Bank NV v Ros Roca SA ,
"[t]he mistake was not in the language but in failure to anticipate its consequences". 46
Furthermore, in those cases in which an irrebuttable presumption of the "natural and ordinary
meaning" compels a judge to construe a document in a way contrary to what they consider the
reasonable person would take the parties to have intended, there is always a tendency to find some
"ambiguity" or other reason why the rule should not apply. In Re Morgan Lord Greene M.R. remarked
of the rule about the meaning of "money":
"One of the vices of a rule such as this is that it induces a tendency, which is often very attractive to
the judicial mind, to endeavour by some very subtle and sometimes over-subtle distinctions, to
construe a will in such a way as to get out of the rule. I myself find any such process intellectually
distasteful." 47
There are advantages in allowing judges to be intellectually honest.

2. Implied terms and rectification

Lord Sumption considers the ICS principles are inconsistent with the law of implied terms and
rectification. They are:
"difficult to reconcile with the law relating to implied terms and rectification. It is hard to see any need
for either of these doctrines if the parties can have an intention attributed to them which is not
reflected in the language of the agreement." 48
I do not understand either of these points. Implied terms are "reflected in the language of the
agreement". They are reflected in the language as that language would be understood against the
relevant background. In Wigmore Hall, Matthew was understood to have promised to pay for the
ticket because of the language which he used, namely "Do you think you could get me a ticket?" Lord
Sumption’s reasoning exhibits the same fallacy as the judgment of Lord Neuberger in *L.Q.R. 572
Marks and Spencer Plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd . Lord Sumption
 Page13

says:
"Implication fills a gap in the written instrument. It is not possible to identify by a process of
construction something which ex hypothesi is not in the agreement at all." 49
This is a confusion between words and meaning, between word meaning and speaker meaning.
There are no relevant words in the agreement but the agreement may nevertheless mean something
which it does not say.
Lord Sumption proceeds:
"The minimum condition for the recognition of an implied term remains necessity. The … process of
construction described by Lord Hoffmann in Investors Compensation Scheme [and Attorney General
of Belize v Belize Telecom Ltd 50] is … tantamount to allowing terms to be implied on the ground that
they are commercially reasonable and must therefore have been intended." 51
I can find no basis in the relevant judgments for this claim. On the contrary, Belize Telecom
emphasises the reluctance of courts to accept that something significant has been left out of a legal
document and I have tried in this article to explain why, consistently with ordinary techniques of
interpretation and common sense, this should be so.
As for rectification, Lord Sumption says that if the principles stated in ICS are correct "the issue [of
whether a contract should be rectified] cannot arise at all". 52 This claim has some distinguished
support. Sir Richard Buxton said much the same in a note on the Chartbook case53 which Sir Kim
Lewison said "made a powerful case for the conclusion that the difference between construction and
rectification had reduced almost to the vanishing point". 54
It is however obviously wrong. Construction is anterior to rectification. You first decide what the
document means and then, if it is a document which the parties have agreed should embody certain
previously agreed terms and, through some mistake of drafting, it does not have the same meaning
as those terms, equity may rectify the document to accord with what was agreed. The notion that any
such error of drafting is bound to reveal itself in a reading of the contract against the admissible
background is quite unreal. If you agree to sell your house for £2 million but the contract is signed
without anyone noticing that it said £1 million, there is no way in which the admissible background
would enable a court to construe £1 million as £2 million. You might bring evidence that similar
houses in the vicinity had gone for £1.5 million to £2.5 million, but the court would say, first, that you
*L.Q.R. 573 might for any number of reasons have agreed to sell for £1 million, and secondly, how
was it to decide what was the "right" figure? Rectification would be the only remedy. There will also be
cases in which it is obvious that something has gone wrong with the language but no way of
discovering from the admissible background what it was actually intended to mean. Here again, the
remedy, if any, would lie only in rectification.

VI. Conclusion
I quite agree with Lord Sumption’s view that we should not depart from the conventional meaning of
the language of a contract merely because, either at the time or in the light of the events which have
happened, that would have been more fair or reasonable. No one has ever supported such a rule. We
must give effect to what they appear to have used the language to mean, whether that would have
been fair and reasonable or not. We must take into account that legal documents are drawn up by
people who can be expected to have chosen their words with care and not to have left things out. I
have never suggested that we should "abandon [dictionaries and grammars] as the basic tools of
construction". 55 We must distinguish carefully between what appears to have been a mistake of
language and a mistake about the world. But let us not go back to the dark ages of word magic, of
irrebuttable presumptions by which the intentions of a user of language are stretched, truncated or
otherwise mangled to give effect to the "admissible", "strict and proper", "natural and ordinary" or
"autonomous" meanings of words, even when it is obvious that it was not the meaning the author,
actual or notional, could have intended.
Leonard Hoffmann
L.Q.R. 2018, 134(Oct), 553-573

1. Lord Sumption, "A Question of Taste: The UK Supreme Court and the Interpretation of Contracts" (2016–2017) 8 The
 Page14

UK Supreme Court Yearbook 74 at 79.

2. See John Searle, "A Taxonomy of Illocutionary Acts" in his Expression and Meaning (Cambridge: Cambridge University
Press, 1979).
3. J.L. Austin, How to Do Things with Words, 2nd edn (Oxford: Oxford University Press, 1975).
4. Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46; [2005] 1 All E.R. 667 at 64. See also Searle, "Literal
Meaning" in Expression and Meaning (1979).
5. Ludwig Wittgenstein, Philosophical Investigations, revised 4th edn (New Jersey: Wiley-Blackwell, 2009), at paras 66–67
.
6. "A nice derangement of epitaphs" is more puzzling.
7. See H.P. Grice, "Meaning" (1957) 66 Philosophical Review 377; and "Utterer’s Meaning and Intentions" (1969) 78
Philosophical Review 147.
8. See his "A Nice Derangement of Epitaphs" in A.P. Martinich (ed.), The Philosophy of Language, 3rd edn (Oxford:
Oxford University Press, 1996), at p.466.
9. This is a highly controversial exclusion which I shall not here attempt to justify or explain. There is a considerable
literature on the subject.
10. Pepper v Hart [1993] A.C. 593; [1993] 1 All E.R. 42 .
11. The Institutes of Gaius, 4.11.
12. D. Daube, "Texts and Interpretation in Roman and Jewish Law" (1961) 3 Jewish Journal of Sociology 3 at 4–5.
13. [1997] A.C. 749; [1997] 3 All E.R. 352 .
14. [1998] 1 W.L.R. 896; [1998] 1 All E.R. 98 .
15. [2009] UKHL 38; [2009] 1 A.C. 1101 .
16. Searle, Speech Acts (Cambridge: Cambridge University Press, 1969), at p.19.
17. There is another kind of implied term created by legal rules which provide that such terms are to be implied into certain
classes of transaction unless expressly excluded. These arise as a matter of law rather than construction and I do not
deal with them.
18. Bowen L.J. in The Moorcock (1889) 14 P.D. 64 at 68.
19. McKinnon L.J. in Southern Foundries (1926) Ltd v Shirlaw [1939] 2 K.B. 206 at 227; [1939] 2 All E.R. 113 at 124.
20. [1995] E.M.L.R. 472 at 481.
21. [2015] UKSC 72; [2016] A.C. 742 .
22. [2016] A.C. 742 at [26]–[27].
23. In a legal context, this expectation is reflected in the common law of agency (see Bowstead and Reynolds on Agency,
21st edn (London: Sweet & Maxwell, 2017), at art.62) and the civil law of mandate (Ulpian ad Dig. 17.1.12.9).
24. [1914] A.C. 71 .
25. (1842) 9 Cl. & F. 355 at 565–566; 8 E.R. 450 at 532–533.
26. (1857) 6 H.L. Cas. 61 at 106; 10 E.R. 1216 at 1234.
27. There is a good discussion of Wigram and his influence on the construction of wills in Roger Kerridge and Julian Rivers,
"The Construction of Wills" (2000) 116 L.Q.R. 287.
28. (1810) 3 Taunt. 147; 128 E.R. 58 .
29. Wigram, Examination of the Rules of Law respecting the Admission of Extrinsic Evidence in aid of the Interpretation of
Wills, 5th edn (London: Sweet & Maxwell, 1914), at pp.25–26.
30. (1816) 4 Dow P.C. 65; 3 E.R. 1091 .
31. (1870) L.R. 2 P. & D. 46.
32. (1856) 1 Hurl. & N. 225; 156 E.R. 1186 .
33. Wigram, Examination of the Rules of Law respecting the Admission of Extrinsic Evidence in aid of the Interpretation of
Wills (1914), at p.29.
34. See his Crome Yellow (London: Chatto & Windus, 1921), Ch.5.
35. [1942] Ch. 345; [1942] 2 All E.R. 30 .
36. Re Morgan [1942] Ch. 345 at 346.
37. Perrin v Morgan [1943] A.C. 399; [1943] 1 All E.R. 187 .
38. Perrin [1943] A.C. 399 at 414.
39. [1998] 1 W.L.R. 896 .
 Page15

40. [2014] UKSC 2; [2015] A.C. 129 .

41. Sumption, "A Question of Taste: The UK Supreme Court and the Interpretation of Contracts" (2016–2017) 8 The UK
Supreme Court Yearbook 74 at 80.
42. Sumption, "A Question of Taste: The UK Supreme Court and the Interpretation of Contracts" (2016–2017) 8 The UK
Supreme Court Yearbook 74 at 80.
43. [2016] A.C. 742 . See p.563 above.
44. [2009] 1 A.C. 1101 .
45. Sumption, "A Question of Taste: The UK Supreme Court and the Interpretation of Contracts" (2016–2017) 8 The UK
Supreme Court Yearbook 74 at 81.
46. [2011] EWCA Civ 353; [2012] 1 W.L.R. 472 at [24].
47. Re Morgan [1942] Ch. 345 at 347.
48. Sumption, "A Question of Taste: The UK Supreme Court and the Interpretation of Contracts" (2016–2017) 8 The UK
Supreme Court Yearbook 74 at 85.
49. Sumption, "A Question of Taste: The UK Supreme Court and the Interpretation of Contracts" (2016–2017) 8 The UK
Supreme Court Yearbook 74 at 85.
50. [2009] UKPC 10; [2009] 1 W.L.R. 1998 .
51. Sumption, "A Question of Taste: The UK Supreme Court and the Interpretation of Contracts" (2016–2017) 8 The UK
Supreme Court Yearbook 74 at 85.
52. Sumption, "A Question of Taste: The UK Supreme Court and the Interpretation of Contracts" (2016–2017) 8 The UK
Supreme Court Yearbook 74 at 86.
53. Buxton, "‘Construction’ and rectification after Chartbrook" [2010] C.L.J. 253.
54. Lewison, The Interpretation of Contracts, 6th edn (London: Sweet & Maxwell, 2017), at para.9.01, fn.31. The case does
not seem to have been powerful enough to convince Sir Kim in his judicial capacity: see Lewison L.J. in Cherry Tree
Investments v Landmain Ltd [2012] EWCA Civ 736; [2013] Ch. 305 at [120].
55. Sumption, "A Question of Taste: The UK Supreme Court and the Interpretation of Contracts" (2016–2017) 8 The UK
Supreme Court Yearbook 74 at 82.

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