A Dangerous Method: Genealogy in the Interpretation of Contracts

This chapter explores the historical and comparative foundations of contract interpretation through a genealogical approach. It demonstrates that civil and common law traditions largely maintained similar interpretive practices between the sixteenth and nineteenth centuries. The chapter notes that a key tension emerges between textual fidelity and contextual intent, reflected in debates on strict adherence to text versus consideration of the parties’ intentions—an enduring feature in both traditions. Procedural norms, particularly rules of evidence, played a crucial role in the evolution of the law in the nineteenth century. The exclusion of party testimony in civil law jurisdictions such as France, and England’s reforms allowing such testimony, led to distinct approaches to contract interpretation. The chapter contends that more recent developments, such as France’s 2016 reforms introducing an objective test of interpretation for ambiguous terms, suggest convergence. This convergence actually goes deeper because, as Simon Whittaker observed, French courts do not allow direct evidence of the parties’ intention, relying instead on that which is essentially objective evidence of intention. Despite these similarities, differences persist. France adopts a holistic approach to contract interpretation, whereas England adopts a more fragmented approach, with rules that draw distinctions unknown in France leading, for example, to a prohibition on considering subsequent conduct as an aid to contract interpretation. Ultimately, contract interpretation reflects historical legacies, institutional practices, and evolving doctrinal compromises. Comparative law studies informed by an understanding of the genealogy of the law are necessary to prevent misconceptions about the law’s development and its current state.