March 7, 2018

Kar on Formal Argument That Contract Meaning Depends On Linguistic Cooperation @UIllinoisLaw

Robin Bradley Kar, University of Illinois College of Law, has published Formal Argument that Contract Meaning Depends on Linguistic Cooperation. Here is the abstract.
In Pseudo-Contract and Shared Meaning Analysis, Professor Radin and I recently drew on contemporary insights into meaning, pioneered by Paul Grice, to develop a contemporary approach to contract interpretation — “shared meaning analysis” — which is adapted to modern circumstances. Part of our argument for using shared meaning analysis rested on the claim that when interpreting contracts, “the primary search is for a common meaning of the parties” — as the Restatement (Second) of Contracts puts the point. When identifying this common meaning, we argued that courts and parties implicitly rely on presuppositions of linguistic cooperation in ways that often go unrecognized. We suggested that the dependence of contract meaning on linguistic cooperation is pervasive and practically ineliminable. But some tests for contract interpretation, which are repeated more from habit than careful thought, have begun to delink contract meaning from the common meaning of the parties. This brief essay separates out and develops a detailed formal argument for the proposition that contract meaning depends on linguistic cooperation. Following Grice, I define “sentence meaning” as the meaning that a competent speaker of a language would attribute to a sentence independent of any knowledge of its occasion of use. I define “speaker meaning” as the meaning that a speaker intends to convey to another person within an interpersonal conversation, which often depends upon both parties relying on implicit presuppositions of linguistic cooperation. Building on these distinctions (but also departing from both in some ways), Professor Radin and I have offered a contemporary definition of the “shared meaning” of a contract. It is the meaning that the parties produced and actually agreed to based on the presupposition that both were using language cooperatively to contract. The purpose of this essay is to establish just how pervasive and practically ineliminable the presupposition of linguistic cooperation is to derive pervasive and uncontroversial aspects of contract meaning. Neither contemporary “objective” nor long-rejected “subjective” approaches to interpretation are getting contract interpretation perfectly right in some contemporary settings.
Download the article from SSRN at the link.

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