A Comparative Analysis of US and English Contract Law Interpretation and Implied Terms
Abstract
Contractual disputes frequently arise out of disagreements between commercial parties around ambiguous or incomplete contractual terms. Negotiating parties will seek to incorporate the terms of their commercial arrangement within a written contractual instrument that is comprehensive and unambiguous. Often, however, contracts are: 1) agreed under commercial pressure; 2) made between parties of unequal bargaining power; or 3) between parties dealing on cross-border transactions using differing terminology and drafting techniques. International in-house counsel are consequently required to deal with a variety of contracts with different governing laws and a colourful mix of terminology and drafting. The circumstances around a transaction may change and the written terms of a commercial contract are reviewed to address and hopefully resolve a particular issue. The same question then arises time and time again: how should we interpret this clause?
