Interpretation
Commercial Contract
Table of Contents:
Basic Rules of Interpretation
Miscellaneous
Interpretation
Basic Rules of Interpretation
As demonstrated by the following exemplars, contracting parties may find it useful to agree to a basic set of rules for interpreting contract terms to avoid later disputes as to the meaning(s) that the parties ascribed to them:
Exemplar C42-1
In this Agreement, except where the context otherwise requires:
(a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to a clause, paragraph, annexure or schedule is to a clause or paragraph of, or annexure or schedule to, this Agreement, and a reference to this Agreement includes any schedule;
(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e) a reference to $ or USD is to United States currency;
(f) a reference to time is to time in New York, New York USA;
(g) a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
(h) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(i) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(j) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(k) references to clauses within a schedule refer to clauses located in that schedule; and
(l) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it.
Exemplar C42-2
The following rules shall be applied in the construction of provisions of this Agreement:
(a) The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared this Agreement with counsels’ assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this Agreement shall be construed based on any particular Party having drafted the Agreement or such provision.
(b) Neither the history of negotiations between the Parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in the course of preparing Agreement drafts, shall be used to construe the meaning of any provision.
(c) As used in this Agreement, (i) neutral pronouns and any derivations thereof shall be deemed to include the feminine and masculine and all terms used in the singular shall be deemed to include the plural and vice versa, as the context may require; (ii) the words “hereof,” “herein,” “hereunder” and other words of similar import refer to this Agreement as a whole, including all exhibits and schedules as the same may be amended or supplemented from time to time, and not to any subdivision of this Agreement; (iii) the words “Party” and “Parties” refer, respectively, to a party or to both of the parties to this Agreement; (iv) the word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it; (v) the word “or” shall be interpreted in its inclusive sense unless there is an express limitation to the contrary, such that, for example, absent such express limitation, a provision of the form “A or B” shall be satisfied by “A” alone, “B” alone, or “A and B” together; and (vi) explicit references to a particular Section hereof shall be deemed to include a reference to the subsections, if any, associated with the Section as well.
(d) Other than proper nouns, terms presented with initial capital letters are defined terms and shall be construed according to the definitions furnished in this Agreement.
Exemplar C42-3
For purposes of this Agreement:
(a) Headings are inserted for reference purposes only and shall not affect the interpretation of this Agreement;
(b) Words importing the singular shall also include the plural and vice versa;
(c) Words importing any gender shall include all other genders;
(d) Schedules and Annexes to this Agreement shall form part of this Agreement;
(e) Unless the context otherwise requires, references to any enactment shall be deemed to include references to such enactment as re-enacted, amended or extended and any subordinate legislation made under it from time to time;
(f) Reference to a working day means a day (other than a Saturday or a Sunday) on which banks are open for general banking business in the capital city of the country whose law governs the Agreement;
(g) Reference to clauses or paragraphs shall mean any and all parts, terms, sub-clauses and provisions contained in this Agreement and to the extent referred to in any other documents encompassed by this Agreement;
(h) The order of precedence in which the relevant documents shall prevail in the event of inconsistency is as follows:
(1) a Device Order Form;
(2) Schedules and Annexes;\
(3) Vendor Standard Terms; and
(4) a Purchase Order.
Exemplar C42-4
Rules of Interpretation of this Contract:
a. The Clause and Schedule headings are for convenience only and shall not affect the interpretation of this Agreement.
b. References to Clauses are to Clauses in the main body of this Agreement, and references to Paragraphs are to paragraphs of the Schedules.
c. References to the singular include the plural and vice versa, and references to one gender include the other gender.
d. Any reference to persons includes natural persons, firms, partnerships, limited liability partnerships, companies, corporations, unincorporated associations, local authorities, governments, states, foundations and trusts (in each case whether or not having separate legal personality) and any agency of any of the above.
e. Any phrase introduced by the expressions "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
f. Any reference to any Law (except where the context otherwise requires) (i) shall be deemed to include any bylaws, licences, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made under that Law and (ii) shall be construed as referring to any Law which replaces, re-enacts, amends or consolidates such Law (with or without modification) at any time.
g. Any reference to an English legal expression for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates in that jurisdiction to the English legal expression.
Exemplar C42-5
In these Terms and Conditions:
a) Headings and bold type are for convenience only and do not affect the interpretation of these Terms and Conditions.
b) The singular includes the plural and the plural includes the singular.
c) Words of any gender include all genders.
d) Other parts of speech and grammatical forms of a word or phrase defined in these Terms and Conditions have a corresponding meaning.
e) An expression importing a person includes any company, partnership, joint venture, association, corporation or other body corporate and any Government Agency as well as an individual.
f) A reference to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments of any of them.
g) A reference to a document includes all amendments or supplements to, or replacements or novations of, that document.
h) A reference to a party to a document includes that party’s successors and permitted assignees.
i) A promise on the part of 2 or more persons binds them jointly and severally.
j) A reference to an agreement includes a deed and any legally enforceable undertaking, agreement, arrangement or understanding, whether or not in writing.
k) A reference to liquidation or insolvency includes appointment of an administrator, compromise, arrangement, merger, amalgamation, reconstruction, winding-up, dissolution, deregistration, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or any similar procedure or, where applicable, changes in the constitution of any partnership or person, or death.
l) No provision of these Terms and Conditions will be construed adversely to a party because that party was responsible for the preparation of these Terms and Conditions or that provision.
Miscellaneous
The following exemplars contain additional rules for interpreting contract terms:
Exemplar C42-6
The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement.
Exemplar C42-7
Any descriptive headings that appear herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning, construction or interpretation of, this Agreement. The term “include” or “including” is intended to mean “include without limitation” or “including without limitation.” The terms “shall” and “will” are used interchangeably to denote an affirmative obligation or forbearance. Each of the words "hereof," "herein," and "hereunder" refers to this Agreement as a whole, including the Exhibits as referenced. References to Sections, Schedules, and Exhibits are internal references to this Agreement, and to its attachments, unless otherwise specified. If there is a conflict between the terms of this Agreement and the terms of the Exhibits, the terms of this Agreement will control.