Interpretation of contracts

January 13th, 2023 by James Goudie KC

In MALIK v HUSSAIN (2023) EWCA Civ 2, concerned with exchange of land contracts, at paras 40 &42 the Court of Appeal affirms that the question of interpretation of a contract is, and must be kept, distinct from the issue of whether terms are to be implied into the contract. The process of implication involves a rather different exercise than that of interpretation.  The express terms must be interpreted before one can consider the question of implication. The appropriate course is first to interpret the express provision , carrying out the unitary exercise and adopting the iterative approach identified and explained in the Supreme Court in WOOD v CAPITA, it being unimportant whether one starts with the factual background and the consequences of rival constructions or a close examination of the relevant language in the contract. constructions

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