Contractual Interpretation in English and French Law: Some Comparative Observations

Abstract

Contract interpretation is at the core of commercial litigation in England. It has dominated judicial debate in English commercial law over the last 30 years with a series of prominent House of Lords and Supreme Court decisions, several containing powerful dissents. These decisions have both enthused commentators and ignited controversy, with an abundance of literature from academics, practitioners and judges writing extra-judicially.

There has been relatively little comparative analysis of contractual interpretation. This paper seeks to fill this gap with comparative analysis of some problematic aspects of contractual interpretation in England and France. Comparison with France is particularly topical because French contract law has recently been through a major reform. The section of the Civil Code on contract law was amended and restructured in its entirety, including the part on interpretation. The new French law of contract came into force by government decree in 2016 and became law in 2018.

The paper shows that English and French law share the same starting point, that is, the court must identify the intention of the parties and give effect to their agreement. They diverge, however, as to how the intention of the parties should be identified. These divergences have resulted in quite different aspects of the law of interpretation attracting the attention of the courts and commentators in the two jurisdictions.

Presenter

Associate Professor Solene Rowan is an Associate Professor at the Australian National University specialising in contract, tort, and commercial law. She studied law as an undergraduate student at King's College London and Paris I (Panthéon-Sorbonne) and completed her LLM and doctoral studies at the University of Cambridge. She has written extensively on remedies for breach of contract from a comparative law perspective and has published widely in international journals such as the Cambridge Law Journal, Oxford Journal of Legal Studies and International & Comparative Law Quarterly.

Prior to joining the LSE, Solène was a Fellow and College Lecturer in Law at Queens' College, Cambridge. She has held visiting lectureships at the University of Oxford, the University of Paris II (Panthéon-Assas), and Osaka Gakuin University, Japan. She is also a non-practising solicitor of the Senior Courts of England and Wales, having trained at Herbert Smith LLP, London and Shanghai.