factual+matrix订约时语境.doc

订约时的语境 1 序言 1.1 传统解释合约条文/文字的做法 传统法院的做法去解释合约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看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）的内容，不管有关双方订约当时在想什么、理解什么或谈判过什么等。这传统说法可以说在Lovell and Christmas Ltd v. Wall (1911) 104 LT 85的上诉庭先例中Cozens-Hardy MR大法官说明如下： “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， 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 hol