Determining a Composer’s Message and a Contract’s Meaning

Recently, I purchased a new edition of Bach’s Sonatas and Partitas for unaccompanied violin. For years, I had used a dog-eared version edited by Ivan Galamian, my teacher’s teacher at Julliard, which includes Galamian’s interpretations, fingerings, and bowings.[1] My new copy is an Urtext edition. Urtext editions, frequently cost more than interpretative editions, because they reflect musicologists’[2] painstaking efforts to convey Bach’s original written notation.

Conveying a composer’s original intention is more difficult than it might appear. Original manuscripts from Bach’s era were handwritten, often hastily with ink on parchment. Where the original manuscript is available, it may have been sloppily written or be damaged or incomplete. Sometimes the originals in the composer’s hand have been lost or destroyed, leaving the musicologist to reconstruct the composer’s intentions from later versions.

Interpreting a contract can be like creating an Urtext edition. As an Urtext edition is supposed to convey the composer’s original intention, the goal in contract interpretation is to determine the parties’ intentions when they entered into the contract.

Unlike with a music manuscript, we usually have a complete copy of the contract. Still, delving into the parties’ intentions can require an examination of the context in which the contract was written and how the parties acted after they signed it. Fortunately, the law provides guidelines for contract interpretation, which help with this process.

Four Corners Rule and Parol Evidence

The first concept in contract interpretation is the “four corners rule.” Simply put, if the contract within the four corners of the written page is clear, then that is the interpretation that is used.

This is one reason it is so important to take time when writing a contract to be sure that everything is written down. What the parties intended to say does not matter if the contract, itself, is clear.

Another important concept is the “plain meaning rule.” Unless the contract specifically says otherwise, words and phrases are to be given their common or plain meanings. If parties want for a word to have a special meaning, they need to be sure that is clearly stated in the contract.

Another important concept is the “parol evidence rule.”[3] Related to the four corners rule, under the parol evidence rule, extrinsic evidence may not be used to explain an unambiguous contract. [4] However, if the written contract is ambiguous, then extrinsic or “parol” evidence, such as the parties’ prior discussions, may be used to help determine what the parties intended.

Finding the Parties’ Intention

Parol evidence is not the only way to find the parties’ intentions when a written contract is ambiguous. How the parties act after signing the contract can provide clues as to what they thought they were agreeing to. This is called the “course of performance.”

If the parties have had many contracts together and have a business history together, performance under previous contracts might be helpful in interpreting ambiguous contract terms. While the parties’ actions in performing under a specific contract are called the course of performance, the parties’ actions over several business endeavors usually is called a “course of dealing.”

If All Else Fails Try Some Latin Rules

If these English legal terms (and one French one–parol evidence) do not help, it may be time to bring out Latin maxims to help interpret an ambiguous contract. Some of the more commonly used Latin phrases in this area are:

·    Contra proferentum (against the one offering) means that any ambiguity in a contract is construed against the party which prepared the contract. To avoid application of this doctrine, many contracts contain language stating that they have been equally prepared by both parties and should not be construed against either.

     Ejusdem generis (of the same kind) means that where there is a list of items and then has a general term, it is interpreted to cover items of the same type. For instance, if the contract described “windstorm, hurricane, earthquake, tornado, and similar disasters,” the clause might be construed to include other natural disasters, such as volcanos and tsunamis but not a fire caused by human action.

·     Expressio unius est exclusion alterus (expression of one thing is the exclusion of the others) means that where some things in a category are mentioned and others in the same category are not, it is presumed that the parties intended to omit the items not listed. Using the example above, if the contract prescribed certain actions in the case of “windstorm, hurricane, earthquake, or tornado,” without more, it would be presumed that volcanos and tsunamis were intended to be excluded.

·     Reductio ad absurdum (avoid the absurd) means that a contract should not be given an interpretation which yields an absurd result.

·     Ut res magis valeat quam pereat (it is better for a thing to have value than not) means that contracts should be construed so that each term has a reason for being in the contract.

Don’t Overinterpret a Contract

Our final Latin maxim is “interpretatio cessat in claris” (interpretation stops when the meaning is clear). When creating an Urtext edition, a musicologist need not move to later editions if the composer’s manuscript is available and clear. When interpreting contracts, one always starts with the language of the contract itself. Only if there is a lack of clarity is it necessary to move on and interpret a contract using outside information or maxims.

© 2018 by Elizabeth A. Whitman

DISCLAIMER: The content of this blog is for informational purposes only and does not provide legal advice to any person. No one should take any action regarding the information contained in this blog without first seeking the advice of an attorney. Neither reading this blog nor communication with Whitman Legal Solutions, LLC or Elizabeth A. Whitman creates an attorney-client relationship. No attorney-client relationship will exist with Whitman Legal Solutions, LLC or any attorney affiliated with it unless and until a written contract is signed by all parties and any conditions in such contract are fully satisfied.

[1] Ivan Galamian was one of the most famous violin teachers of the 20th century. In addition to teaching dozens of famous violinists, including Itzhak Perlman and Pinchas Zukerman, Galamian edited many editions of the standard violin repertoire with his own fingerings (the order of placement of fingers on the strings) and bowings (how many notes go in each bow stroke).

[2] Musicology is the study of music. Some of the traditional sub-types of musicology include music history, music theory, ethnomusicology, and performance practice.

[3] This use of the word “parol” is different from the parole when someone is released from jail. Here, the word “parol” comes from the French word for “oral,” so it is referring to “oral evidence,” as opposed to the “written evidence,” which is the written contract.

[4] In “The Merger Doctrine and Surviving the Closing,” I discuss a related concept–the “merger doctrine” as it relates to deeds. Under the merger doctrine, all discussions, negotiations, and agreements, including the real estate purchase contract, are “merged” into the deed.