Contract interpretation: potential for relaxing the exclusionary rule

The purpose of this paper is to analyse the practical policy arguments that support the exclusion of pre‐contractual negotiations in the interpretation of written contracts, and the more principled arguments for allowing such evidence to be admitted. This paper proposes that the exclusionary rule be relaxed in certain limited circumstances.

The paper adopts a black‐letter law approach focusing heavily upon the principles of law itself. It analyses the arguments for and against admitting pre‐contractual negotiations in the interpretation of written contracts through examining key court judgments, key journal articles and leading text under English law and other common law jurisdictions.

The findings show that the arguments advanced in support of the exclusionary rule, whilst of great significance, are not that convincing. The arguments for relaxing the exclusionary rule in certain limited circumstances are very strong.

Empirical study may show that the arguments in support of the exclusionary rule are not in practice as significant as postulated. The paper is focused on the law of England and Wales.

This paper will be instructive to commentators, lawyers, academics and students in the field of commercial contract law and parties to contracts.

The paper contributes to pushing back the boundaries of the developing law in the interpretation of written contracts.