A reason justifying the exclusionary rule against prior negotiations in the interpretation of contracts is its longevity. Yet, the authorities commonly cited in support of the exclusionary rule are mostly traceable to Lord Wilberforce’s speech in the relatively recent case of Prenn v Simmonds. This article suggests that the law took a wrong turn in that case and caused later courts to support the exclusionary rule by recourse to policy-oriented justifications, instead of principle-based ones. The emphasis on policy-oriented justifications, and the recantation of Prenn v Simmonds as reason enough for the exclusionary rule, support an independent rule against prior negotiations that was never meant to be.The consequence is the judicial (and academic) acknowledgement of the exclusionary rule’s uncertain boundaries, and the simultaneous maintenance of its legitimacy.
Contract terms, Contractual negotiations, Exclusionary rule, Interpretation
Asian Studies | Commercial Law | Contracts
Journal of Business Law
Sweet and Maxwell
A Wrong Turn in History: Re-understanding the Exclusionary Rule Against Prior Negotiations in Contractual Interpretation. (2014). Journal of Business Law. , 360-387. Research Collection School Of Law.
Available at: http://ink.library.smu.edu.sg/sol_research/1362
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