|Title||Judicial Interpretation of Commercial Contracts in English and French Law: A Comparative Perspective|
In this paper, I consider whether the recent French reform of contract law has changed the principles of judicial interpretation of commercial contracts, and how they compare with the principles in English law. Is the traditional dichotomy between the French subjective approach and the English objective one has been altered now that the objective principle of interpretation has been codified in the reformed Code civil? Other aspects of judicial interpretation must be considered in this comparative exercise, such as the nature of the interpretative question, the purpose of interpretation and its scope. Similarities emerge that show a rapprochement, but this cannot hide persistent differences as interpretation is anchored in their respective legal orders. However, with the complexification and fragmentation of commercial contracts, it is expected that the distinctiveness in the interpretative approach will diminish as English and French courts follow an objective text-based approach to interpretation. The French reform encourages this as it enhances lower courts’ ability to seek the objective meaning of the contract. An emerging coalescence around an objective textual interpretation would be welcomed by commercial parties as it enhances certainty across borders.
|Keywords||Judicial interpretation, implication, subjective approach to interpretation, objective approach to interpretation, contextualism, common judicial hermeneutics, English law, French law, French reform of contract law|
|Journal||European Business Law Review|
|Accepted author manuscript|
File Access Level
Open (open metadata and files)
|Published||01 Sep 2021|