精品文档】如有侵权，请联系网站删除，仅供学习与交流合约解释 第六章 语境.....精品文档......第六章 外部解释合约—订约时的背景/语境1 序言1.1 传统解释看来是双方接受的完整文书合约条文/文字的做法传统法院的做法去解释文书合约/文件是尽量给一个文字上（literal）的意思，这说的是它的一般性（ordinary），自然（natural），平易（plain），通用（popular sense）的解释换一个说法解释合约只是在一份看来是双方接受的完整文书合约（典型的好例子就是双方签署了的一份合约）内的四个角之内（four corners of the contract）的条文/文字，除了在一些例外情况，不管有关双方订约时的背景、理解些什么或为什么去使用起争议的语言等这传统解释合约的做法与可接收外来证据的例外情况在Lovell and Christmas Ltd v. Wall (1911) 104 LT 85的上诉庭先例中Cozens-Hardy MR大法官有说明如下：“If there is one principle more clearly established than another in English law it is surely this: it is for the court to construe a written document. It is irrelevant and improper to ask what the parties, prior to the execution of the instrument, intended or understood. What is the meaning of the language that they have used therein? That is the problem, and the only problem. In saying that, I do not mean to assert that no evidence can be admitted. Indeed, the contrary is clear. If a deed relates to Black Acre, you may have evidence to show what are the parcels. If a document is in a foreign language, you may have an interpreter. If it contains technical terms, an expert may explain them. If, according to the custom of a trade or the usage of the market, a word has acquired a secondary meaning, evidence may be given to prove it. A well-known instance is where in a particular trade 1000 rabbits meant 1200. But unless the case can be brought within some or one of these exceptions, it is the duty of the court, which is presumed to understand the English language, to construe the document according to the ordinary grammatical meaning of the words used therein, and without reference to anything which has previously passed between the parties to it.”。
上述的说法可以说是与一个不懂法律人士的思维方式很不一样，后者会马上想到如果去解释一个合约的真正订约意图，最简单的办法就是把订约双方请来，要求他们作出解释但这其实也不简单，因为他们有了争议就肯定会是南辕北辙地作出自己的解释，变了去接受这种主观的订约意图是只会令整个争议更加复杂与无所适从这在G Dworkin, Odgers’Construction of Deeds and Statutes (5th edn, 1967) (‘Odgers’)中有提及：“To a layman, the easiest way to answer this question might seem to be to call the parties before the court and ask them what they meant. In that case, the parties would not only usurp the function of the court, but would probably hold entirely different opinions as to what was meant by the words used.”。
这一来，在这两种截然不同的思维方式中，孰优孰劣，可去探讨一下不懂法律人士接受在争议中的订约双方提供合约解释的证据，有几方面的大问题一）是英国法律一直以来坚持是去客观看待合约中双方约定的文字去解释，去由订约双方提供证据就变了是有危险接受主观的解释了二）是这种证据免不了是对证人自己有利，加上可能解决争议与订约的时间相隔较长，真实性有多少很有怀疑，尤其是口头证据三）是双方在争议中提供两个不同的版本通常是不会对法官/仲裁员对合约的解释有真正的帮助，反而会带来混乱四）是双方在谈判中经常会改变立场，甚至在每一封来往的信函中讨价还价，这种改变只会到了最后订约的一刻或签署合约时才会“认命”，所以去看谈判过程往往也找不出双方的真正订约意图上述的一些大问题Wilberforce勋爵在Prenn v. Simmonds (1971) W.L.R. 1381中有提到，说：“On principle, the matter is worth pursuing a little, because the present case illustrates very well the disadvantages and danger of departing from established doctrine and the virtue of the latter. There were prolonged negotiations between solicitors, with exchanges of draft clauses, ultimately emerging in clause 2 of the agreement. The reason for not admitting evidence of these exchanges is not a technical one, or even mainly one of convenience (though the attempt to admit it did greatly prolong the case and add to its expense). It is simply that such evidence is unhelpful. By the nature of things, where negotiations are difficult, the parties’ positions, with each passing letter, are changing and until the final agreement, though converging still divergent. It is only the final documents which records a consensus. If the previous documents use different expressions, how does construction as an expression, itself a doubtful process, help on the construction of the contractual words? If the same expressions are used, nothing is gained by looking back; indeed, something may be lost since the relevant surrounding circumstances may be different. And at this stage there is no consensus to the parties to appeal to. It may be said that previous documents may be looked to explain the aims of the parties. In a limited sense this is true: the commercial, or business object, of the transaction, objectively ascertained, may be a surrounding fact … and if it can be shown that one interpretation completely frustrates that object, to the extent of rendering the contract futile, that may be a strong argument for an alternative interpretation, if that can reasonably be found. But beyond that it may be difficult to go: it may be a matter of degree, or of judgment, how far one interpretation, or another, gives effect to a common intention: parties, indeed may be pursuing that intention with differing emphasis and hoping to achieve to an represent a formula which means different things to each side, yet may be accepted because that is the only way to get ‘agreement’ and in the hope that disputes will not arise. The only course can then be try to ascertain the ‘natural’ meaning. Far more common, and indeed, totally dangerous is to admit evidence of one party’s objective—even if this known to the other p。