损失的赔偿与救济 - gzlawyer.org

损失的赔偿与救济 - gzlawyer.org

(2) / Philip Yang 01/28/2020 issue of facts issue of law / constr uction of contract/written document / Travaux prparatoires 01/28/2020

/ Lord Romilly MR in Re Strand Music Hall Co Ltd (1865) 35 Beav. 153: The proper mode of construing any written instrument is, to give effect to every part of it, if this be possible, an d not to strike out or nullify one clause in a de ed, unless it be impossible to reconcile it with another and more express clause in the same deed. 01/28/2020 Lord Watson in Chamber Colliery Ltd. v. Twye

rould (1893) 1 Ch. 268: .. The well known rul e that a deed ought to be read as a whole, in order to ascertain the true meaning of its sev eral clauses; and that the words of each claus e should be so interpreted as to bring them in to harmony with the other provisions of the d eed, if that interpretation does no violence to the meaning of which they are naturally susce ptible. 01/28/2020 Lord Goff in Yien Yieh Comm Bank Ltd v. Kwai Chung Co ld Storage Co Ltd (1989) 2 HKLR 639, PC: Their Lordsh ips wish to stress that to reject one clause in a contract a

s inconsistent with another involves a rewriting of the contract which can only be justified in circumstances w here the two clauses are in truth inconsistent . Where the document has been drafted as a coherent whole, rep ugnancy is extremely unlikely to occur. The contract has, after all, to be read as a whole; and the overwhelming pr obability is that, on examination, an apparent inconsiste ncy will be resolved by the ordinary processes of constru ction. 01/28/2020 Lord Diplock in Prestcold (Central) Ltd v. Ministe r of Labour (1969) 1 W.L.R. 89: the habit of a legal draftsman is to eschew synonyms. He uses

the same words throughout the document to exp ress the same thing or concept and consequently if he uses different words the presumption is that he means a different thing or concept; a legal draftsman aims at uniformity in the structure of his draft. 01/28/2020 Para. 12-078 of Chitty on Contracts (31st edn, 2012): I nconsistent or repugnant clauses. Where the differ ent parts of an instrument are inconsistent, effect must be given to that part which is calculated to carry into e ffect the purpose of the contract as gathered from the i

nstrument as a whole and the available background, an d that part which would defeat it must be rejected. The old rule was, in such a case, that the earlier clause was to be received and the later rejected, but this rule was a mere rule of thumb, totally unscientific, and out of ke eping with the modern construction of documents 01/28/2020 Lord Bingham in The Starsin (2003) 1 Lloy ds Rep.571: .. It is common sense that great er weight should attach to terms which the parties have chosen to include in the contract than to pre-printed terms .. /

In Re Hammond (1938) 3 All ER 308: where words and figures conflict, the words ought to prevail. 01/28/2020 In the case of incorporation, J. Buckley in Mo dern Building Wales Ltd v. Limmer and Trinid ad Co Ltd (1975) 1 WLR 1281 CA: that if a ny of the imported terms in any way conflicts with the expressly agreed terms, the latter m ust prevail over what would otherwise be imp orted. Crucial words of notwithstanding the provis

ions Paramount Clause 01/28/2020 The presumption against surplusage Deletion (of words in standard co ntract) Why did you not express it ot

herwise (clearer)? Hindsight bias 01/28/2020 : unworkable or void for uncerta inty; executory vs executed ambiguity patent ambiguit y latent ambiguity uncertainty / devoid of a ny meaning / / / /

agreement to agree 01/28/2020 Standard printed conditions and special con ditions The reasonableness of the result / Contra Proferentem Ejusdem generis The presumption that a contracting party cannot take advantage of its own wrong Presumption of legality

Presumption aga inst impossibility Etc. 01/28/2020 Lord Steyn in Mannai Investments Co Ltd v. Eagl e Star Life Assurance Co Ltd (1997) A.C. 749: There has been a shift from strict construction of commercial instruments to what is sometime s called purposive construction of such docume nts. Lord Diplock deprecated the use of that phrase in regard to the construction of private contracts as opposed to the construction of statutes That is un derstandable. There are obvious differences betwee

n the process of interpretation in regard to private c ontracts and public statutes It is better to speak o f a shift towards commercial interpretation. 01/28/2020 Lord Hoffmann in Investors Compensation Scheme v. West Br omwich Building Society : The rule that words should be given their natural and ordinary meaning reflects the commonsense proposition that people have made linguistic mistakes, particularly in formal documents. On th e other hand, if one would nevertheless conclude from the backgr ound that something must have gone wrong with the language, th e law does not require judges to attribute to the parties an intenti on which they plainly could not have had. Lord Diplock made this

point more vigorously when he said in Antaios Cia Naviera SA v. S alen Rederierna AB, The Antaios (1985) A.C. 191: if detailed semantic and syntactical analysis of words in a com mercial contract is going to lead to a conclusion that flouts busine ss common sense, it must be made to yield to business common se nse. 01/28/2020 purposive construction contextual construction commercial construction liberal construction The Diana Prosperity (1976) 2 Lloyds Rep. 62

1 Charter Reinsurance Co Ltd v. Fagan (199 7) AC 313, HL; BCCI v. Ali (2001) 1 UKHL 8; Th e Starsin (2003) 1 Lloyds Rep. 571; Rainy Sk y SA and others v Kookmin Bank (2012) 1 Lloyd s Rep 34 01/28/2020 / factual matrix/contex t /

factual matrix/context 01/28/2020 Parol evidence rule Masquerade Music Ltd v. Spri

ngsteen [2001] E.W.C.A. Civ 513; [2001] C.P.L.R. 369; [2001] E.M.L.R. 25 / / 01/28/2020 document not intended to be w hole contract / collateral warranties or contracts

rectification surrounding circumstances subject matter or identity technical or scientific language / trade usages or terms ancient documents foreign language non e st factum and vitiating factors characterization or sham 01/28/2020 negotiation exclusion rule prio

r negotiation rule 01/28/2020 Prenn v. Simmonds (1971) 1 W.L.R. 1381; The Dia na Prosperity (1976) 2 Lloyds Rep. 621; Investor s Compensation Scheme v. West Bromwich Buildin

g Society (1998) 1 W.L.R. 896; NLA Group Ltd v. B owers(1999) 1 Lloyds Rep. 109; The BOC Group v. Centeon (1999) 1 All E.R. (Comm) 970; The Rio A ssu (1999) 1 Lloyds Rep. 115; Canterbury Golf In ternational Ltd v. Yoshimoto (2002) UKPC 40; Stati c Control Components (Europe) Ltd v. Egan (2004) 2 Lloyds Rep. 429; GE Frankona Reinsurance Ltd v. CMM Trust No 1400 (2006) EWHC 429; etc. 01/28/2020 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; R oyal Botanic Gardens and Domain Trust v South Sydney C ity Council (2002) 240 CLR 45; Secured Income Real Esta

te (Australia) Ltd. v St. Martins Investments Pty. Ltd (197 9) 144 CLR 596; Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; etc. Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior De sign & Construction Pte Ltd (2008) 3 SLR 1029 Jumbo King Ltd v Faithful Properties Ltd & Ors (1999) 2H KCFAR 279 01/28/2020

Rainy Sky SA and others v Kookmin Bank (2012) 1 Lloyds Rep 34 / Lord Clark Where the parties have used unambiguous lan guage, the court must apply it. 01/28/2020 Arnold v Britton and Others [2015] UKSC 36 1. the nature and ordinary meaning of t

he clause ; 2. any other relevant provisions of the co ntract ; 3. the overall purpose of the clause a nd the contract ; 4. the facts and circumst ances known or assumed by the parties at the time that t he document was executed 5. commercial common sense 6. 01/28/2020 1.

the reliance placed in some cases on commercial com mon sense and surrounding circumstances should n ot be invoked to undervalue the importance of the lang uage of the provision which is to be construed. The exe rcise of interpreting a provision involves identifying w hat the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the lang uage of the provision. Unlike commercial common sens e and the surrounding circumstances, the parties have control over the language they use in a contract. 01/28/2020 2.

the less clear they are, or, to put it another way, the worse th eir drafting, the more ready the court can properly be to depa rt from their natural meaning. 3. commercial common sense is not to be invoked retrospective ly. The mere fact that a contractual arrangement, if interprete d according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for dep arting from the natural language. Commercial common sense is only relevant to the extent of how matters would or could h ave been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract wa s made. 01/28/2020

4. while commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as co rrect simply because it appears to be a very imprudent term fo r one of the parties to have agreed, even ignoring the benefit o f wisdom of hindsight. Experience shows that it is by no means unknown for people to enter into arrangements which are ill-a dvised when interpreting a contract a judge should avoid rewriting it in an attempt to assist an unwise party or to penalise an astute party.

01/28/2020 5. When interpreting a contractual provision, one can only take into account facts or circu mstances which existed at the time that the contract was made, and which were known or reasonably available to both parties. 01/28/2020 Laird Resources LLP v Aumm Holdings Ltd [2

015] EWHC 2615 (Comm) Rainy Sky Arnold v Britton 01/28/2020 54

59 72 01/28/2020

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