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Interpretation of contracts : admissibility of pre-contractual negotiations

Differing interpretation of contract requirements is among key causes of construction contractual disputes. Generally interpretation of a contract is confined to the four corners of the document. In reality, commercial contracts do not artificially live in isolation from context, and courts have alr...

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Main Author: Mohamad Khairuddi, Muhammad Khawarizmi
Format: Thesis
Language:English
Published: 2019
Subjects:
TH434-437 Quantity surveying
Online Access:http://eprints.utm.my/id/eprint/86054/1/MuhammadKhawarizmiMohamadMFABU2019.pdf
http://eprints.utm.my/id/eprint/86054/
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spelling my.utm.860542020-08-30T08:53:09Z http://eprints.utm.my/id/eprint/86054/ Interpretation of contracts : admissibility of pre-contractual negotiations Mohamad Khairuddi, Muhammad Khawarizmi TH434-437 Quantity surveying Differing interpretation of contract requirements is among key causes of construction contractual disputes. Generally interpretation of a contract is confined to the four corners of the document. In reality, commercial contracts do not artificially live in isolation from context, and courts have already subscribed to contextual approach in construing a contract. Despite this approach being applied in interpretation of contracts, pre-contractual negotiation evidence have been conventionally excluded from being considered to help understand the meaning of the words in the contract, except in action for rectification. This research aimed to comprehend the current state of law with respect to admissibility of pre-contractual negotiations in interpretation of contracts, and whether there are exceptions to the rule. Based on examination of case law, the highest court in England remains with status quo, which received mixed reactions from other common law jurisdictions. It was found that Malaysia continues to follow the approach set in England albeit with reservation. Decisions from other common law countries reveal circumstances that provide for prior negotiations’ admissibility. They are; reference to private dictionary; harmonisation with international contract convention; when evidence is relevant, reasonably available to all contracting parties and relates to an obvious context; when it illuminates the genesis of the transaction; when used to construe without prejudice settlement negotiations; and when the evidence provides consistency with commercial common sense. A common theme underlying the exceptions, is that prior negotiations, if referred to, must be objective and reflective of the parties’ mutual understanding prior to contract. 2019 Thesis NonPeerReviewed application/pdf en http://eprints.utm.my/id/eprint/86054/1/MuhammadKhawarizmiMohamadMFABU2019.pdf Mohamad Khairuddi, Muhammad Khawarizmi (2019) Interpretation of contracts : admissibility of pre-contractual negotiations. Masters thesis, Universiti Teknologi Malaysia, Faculty of Built Environment & Surveying. http://dms.library.utm.my:8080/vital/access/manager/Repository/vital:131438
institution Universiti Teknologi Malaysia
building UTM Library
collection Institutional Repository
continent Asia
country Malaysia
content_provider Universiti Teknologi Malaysia
content_source UTM Institutional Repository
url_provider http://eprints.utm.my/
language English
topic TH434-437 Quantity surveying
spellingShingle TH434-437 Quantity surveying
Mohamad Khairuddi, Muhammad Khawarizmi
Interpretation of contracts : admissibility of pre-contractual negotiations
description Differing interpretation of contract requirements is among key causes of construction contractual disputes. Generally interpretation of a contract is confined to the four corners of the document. In reality, commercial contracts do not artificially live in isolation from context, and courts have already subscribed to contextual approach in construing a contract. Despite this approach being applied in interpretation of contracts, pre-contractual negotiation evidence have been conventionally excluded from being considered to help understand the meaning of the words in the contract, except in action for rectification. This research aimed to comprehend the current state of law with respect to admissibility of pre-contractual negotiations in interpretation of contracts, and whether there are exceptions to the rule. Based on examination of case law, the highest court in England remains with status quo, which received mixed reactions from other common law jurisdictions. It was found that Malaysia continues to follow the approach set in England albeit with reservation. Decisions from other common law countries reveal circumstances that provide for prior negotiations’ admissibility. They are; reference to private dictionary; harmonisation with international contract convention; when evidence is relevant, reasonably available to all contracting parties and relates to an obvious context; when it illuminates the genesis of the transaction; when used to construe without prejudice settlement negotiations; and when the evidence provides consistency with commercial common sense. A common theme underlying the exceptions, is that prior negotiations, if referred to, must be objective and reflective of the parties’ mutual understanding prior to contract.
format Thesis
author Mohamad Khairuddi, Muhammad Khawarizmi
author_facet Mohamad Khairuddi, Muhammad Khawarizmi
author_sort Mohamad Khairuddi, Muhammad Khawarizmi
title Interpretation of contracts : admissibility of pre-contractual negotiations
title_short Interpretation of contracts : admissibility of pre-contractual negotiations
title_full Interpretation of contracts : admissibility of pre-contractual negotiations
title_fullStr Interpretation of contracts : admissibility of pre-contractual negotiations
title_full_unstemmed Interpretation of contracts : admissibility of pre-contractual negotiations
title_sort interpretation of contracts : admissibility of pre-contractual negotiations
publishDate 2019
url http://eprints.utm.my/id/eprint/86054/1/MuhammadKhawarizmiMohamadMFABU2019.pdf
http://eprints.utm.my/id/eprint/86054/
http://dms.library.utm.my:8080/vital/access/manager/Repository/vital:131438
_version_ 1677781123845849088
score 13.211869

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