ABSTRACT
This chapter is concerned with the situation where the parties have fulfilled all the requirements for making a valid contract, as described in Chapters 2-4. It may then become necessary to determine exactly what the obligations are under the contract. Problems may arise in a number of ways. There may, perhaps, have been a lengthy period of pre-contractual negotiation, and it may not be clear which, if any, of the statements which were made at that stage were intended to form part of the contract. The contract may be in writing, and yet one of the parties may allege that it does not truly represent their intentions. In this case the job of the court will be to ‘construe’ the contract in order to decide what the language which it contains should be taken to mean. The task of ‘interpreting’ or ‘constructing’ the contract is likely to be influenced by the surrounding circumstances, including the relative bargaining powers of the parties.1 Such a contextual approach would be easier if the courts adopted a ‘relational’ approach to construction.2 This would enable them to take a broad view of the commercial and personal factors surrounding the agreement, both at the time it was made and as it has developed. Under the classical theory, the courts are limited to matters which may help them to decide what they think that the parties actually meant at the time the agreement was made.
