Publication Type

Journal Article

Version

Postprint

Publication Date

2014

Abstract

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.

Keywords

Contract terms, Contractual negotiations, Exclusionary rule, Interpretation

Discipline

Asian Studies | Commercial Law | Contracts

Research Areas

Commercial Law

Publication

Journal of Business Law

Volume

[2014]

First Page

360

Last Page

387

ISSN

0021-9460

Publisher

Sweet and Maxwell

Creative Commons License

Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

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