MANIPULATIVE INTERPRETATION Research Dox

MANIPULATIVE INTERPRETATION
The court will sometimes manipulate the construction of the contract in

2.11 order to achieve a fair result on the facts of the particular case . This
approach is rarely overtly recognised , and has been disapproved in the
case of exemp tion clauses . All those who have experience of the
decisions of the courts on points of construc tion will be aware that the
court will frequently arrive at a construction which accords with the "
merits " of the case . The process was graphically described by Lord
Denning M.R. in Mitchell ( George ) ( Chesterhall ) Ltd v Finney Lock
Seeds Ltd. 180 In discussing the approach of the court to exemption
clauses he said : " Faced with this abuse of power , by the strong against
the weak , by the use of the small print of the conditions , the judges did
what they could to put a curb on it . They still had before them the idol , '
freedom of contract . ' They still knelt down and worshipped it , but they
concealed under their cloaks a secret weapon . They used it to stab the
idol in the back . This weapon was called ' the true 175 Northshore
Ventures Ltd v Anstead Holdings Inc [ 2011 ] EWCA Civ 230 ; Carey
Value Added SL v Grupo Urvasco SA [ 2010 ] 132 Con . L.R. 15 . 176
Lam Kee Ying Sdn . Bhd v Lam Shes Tong [ 1975 ] A.C. 247 . 17 Akici
v LR Butlin Ltd [ 2006 ] 2 All E.R. 872 . 178 Hong Kong & Shanghai
Banking Corporation v GD Trade Co Ltd [ 1998 ] C.L.C. 238 . 179
[ 2003 ] 3 N.Z.L.R. 740 ; [ 2003 ] UKPC 19 . 180 [ 1983 ] Q.B. 284. See
also Atiyah , " Judicial Te chniques and the Law of Contract "
( reprinted in Essays on Contract ( 1986 ) ) . 61
7:08 CHAPTER 7 THE CANONS OF CONSTRUCTION
The court frequently resorts in the interpretation of deeds and contracts .
The meaning of the maxim
A literal translation of the principle is " the words of documents are to be
taken strongly against the one who puts forward " .
One line of authority proceeds on the basis that one party has the
responsibility for putting forward the whole contract , and hence the
contract will be construed against him , even if the other party has had a
hand in the drafting process . This approach was pithily summarised by
Binnie J. in Co - operators Life Insurance Co v Gibbens .
" Whoever holds the pen creates the ambiguity and must live with the
consequences .”
Two main variants

There are thus two main formulations of the principle. One concentrates
on who put the clause forward. The other concentrates on the party who
benefits from the clause.
In B.H.P. Petroleum Ltd v British Steel Plelés [ 2000 ] 2 Lloyd's Rep
. 277 at 281 . Evans L.J. said :
" It is common ground that the rule of construction known as contra
[ proferentem ] operates against the respondent for two reasons . First,
they rely upon the clause to exclude or to limit the liability alleged
against them, and, secondly, they were responsible for introducing
during the negotiating process the particular parts of the clause on which
they now rely. "
In Whitecap Leisure Ltd v John H Rundle Ltd Moore - Bick L.J.
said of a time bar clause :
" However , in cases where there is uncertainty about the parties '
intention , and therefore about the meaning of the clause , such
uncertainty will be resolved against the person relying on the clause and
the more significant the departure is said to be from what are accepted
to be the obligations ordinarily assumed under a contract of the kind in
question , the more difficult it will be to persuade the court that the
parties intended that result .”
The various formulations of the principle may conflict with each other in
some cases. In North v Marina Campbell J. said
" When there are these different strands of principle recognised in the
case law concerning the application of the maxim , those strands could
themselves come
When the maxim applies

Given not possible easily to predict the cases in which the court will find
the maxim a useful tool.
Thus in CDV Software Entertainment AG v Gamecock Media Europe
that can be said is that the court will resort to the maxim where the
justice of the case demands it . Some reliance was placed on the contra
proferentem principle “very much as a last resort” in Landlord Protect
Ltd v St Anselm Development Company Ltd.
So the court's first task is to construe the document properly on
ordinary principles .As Warren J. explained in PNPF Trust Co Ltd v
Taylor. The fact that there are difficulties about a point of construction
does not mean that there is a doubt or ambiguity of a type to which the
contra proferentem rule may be applicable . If conventional canons of
construction are capable of resolving the issue , they should be
applied .
In The Olympic Brilliance Eveleigh L.J. said that the principle was : "
usually a rule of , if not last , very late resort " .
And in Macey v Qazi , the Court of Appeal went further , and declared
that the presumption is to be used only as a last resort . In 188 Mance
L.J. also said : should " I bear in mind that cl . 18 was proffered by
Mobil Delaware . But construction against the party putting forward a
clause is a rule of last resort . "
In McCann v Switzerland Insurance Australia Ltd 19 Kirby J. said : "

Courts now generally regard the contra proferentem rule ( as it is called )
as one of last resort because it is widely accepted that it is preferable that
judges should struggle with the words actually used as applied to the
unique circumstances of the case and reach their own conclusions by
reference to the logic of the matter.
Effect of the maxim
Where the principle applies , it does not mean that the court should
decide the case against the interest of the proferens wherever it can .
Thus where a use clause in a lease was ambiguous, the application of the
principle led to the adoption of a broader rather than a narrower
permitted use, even though for the purposes of rent review it was in the
tenant's commercial interest to argue for a narrow use . Likewise in a
dissenting judgment in Crawford v Morrowl Côté J. said :
" If the doctrine does apply , it tells the Court to select one of the two
possible interpretations of the contract , the one less favourable to the
party who drafted the contract . That refers to selecting one
interpretation of the contract , not selecting one result of the suit . The
proper interpretation of the contract must exist at the time that it is
made , and not change . It cannot come and go as the parties ' fortunes
wax and wane . It cannot be unknowable and shrouded in fog until after
the event . For example , one interprets an insurance contract the same
way before and after a fire , and it has meaning before any fire . "
It is thought that in principle this is the correct approach . Nor does the
principle enable the court to adopt a strained meaning of the contract .
In North v Marina , Campbell J. said : " The role of the maxim is to
enable the court to choose between alternative meanings of the
document or clause in question , being meanings which are fairly open .
It is not a legitimate use of the maxim to say that two meanings of a
particular contractual provision are possible, and that the meaning
unfavourable to the proferens should be chosen , if one of those
alternative meanings is an unrealistic or unlikely construction of the
contract
AVTAR SINGH
Contra proferentem Where the words used in an exclusion clause are
capable of two constructions, a wider construction and a limited
construction, then the limited construction would be preferred, for the
rule of law is that "every exception clause is to be interpreted, in case of
ambiguity, contra proferentem"1. This means that "if there is any doubt
as to the meaning and scope of the excludeing or limiting term, the
1
Professor Brian Coote, Breach and exception Clauses, (1970) Camb LJ at p. 238., Avtar Singh on Law of Contracts
ambiguity will be resolved against the party who has inserted it... These
principles were applied by the Court of Appeal in Hollier v Rambler
Motors AMC Ltd.
In Bank of India v K Mohandas, (2009) 5 SCC 313, in case of unclear
term or expression, interpretation against the party is to be preferred who
used such expressions,
This doctrine applies in the case of a commercial contract since the
clauses of the contract are bilateral and mutually agreed upon.
In Henry Kendall & Sons v William Lillico & Sons Ltd.^^° In this case
during the past three years three or four times in every month goods
were supplied on oral orders followed by signature on sold notes which
excluded liability for latent defects. It was held that this practice was a
sufficient notice of the terms. Distinguishing this case from the present
the court said that that was a typical case where a consistent course of
dealing between the parties made it imperative for the court to read into
the contract the terms printed on the sold notes.
Cotton threads delivered under a contract were found to be 6 per cent
shorter than they should have been and the seller sought to get rid of the
liability for short delivery by sheltering himself .under the exemption
clause which said that the goods actually delivered would be taken to be
in accordancewith the contract in all respects unless the sellerswere
informed within 14 days of delivery of somethingwrong. The buyers
discovered the shortage when they put the threads to actual use and that
was much later than 14 days. The court did not permit the seller to use
his clause for creating this phenomenon that goods not delivered should
be taken to have been delivered. There was no warrant for an implication
to the effect that non-delivery in length or small measure was included
in the objections which should, within the time-limit, be made to goods
delivered. Beck & Co v Szymanowski & Co, 1923AC 43 (HL).

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MANIPULATIVE INTERPRETATION

The court will sometimes manipulate the construction of the contract in

Two main variants

When the maxim applies

In McCann v Switzerland Insurance Australia Ltd 19 Kirby J. said : "

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