1. The General problem of contract interpretation in OHADAC legal systems

Rules on contract interpretation give rise to one of the most arduous questions in treating contract from a comparative point of view, as pointed out below in comment to article 4.1.2. Nevertheless, all systems distinguish and provide different solutions to two aspects that are generally included in the generic concept of “contract interpretation”. The first question concerns the meaning or sense given to contract clauses. The interpretation of the contract, which is the subject of Section 1 of Chapter 4 of these Principles, corresponds to this operation in the strict sense. The second question concerns the filling in of gaps in the contract when a provision or obligation necessary for the contract to work has been omitted by the parties. In this case these will be rules of “integration” or “construction” of the contract, dealt with in Article 4.2.1.

Therefore, the interpretation of the contract in the strict sense involves attributing meaning to express contract clauses. There are two approaches or comparative models available to resolve this issue, and both are represented in Caribbean legal systems.

The first approach is based on continental or civil law tradition and seeks to determine the meaning of contract clauses from a subjective postulate consisting in determining the true common intent of the parties, which prevails over the literal meaning of contract clauses (Articles 1.156 of the French Civil Code; 1.619 of the Colombian Civil Code; 1.156 of the Dominican Civil Code; 946 of the Haitian Civil Code; 1.519, 1.597 and 1.604 of the Guatemalan C; 1.851 of the Mexican Civil Code; 2.496 of the Nicaraguan Civil Code; 1.132 of the Panamanian Civil Code; 1.233 of the Puerto Rican Civil Code; 945 of the Saint Lucian Civil Code). This principle is also present in some characteristic canons of interpretation (1.619 of the Colombian Civil Code; 1.594 of the Guatemalan Civil Code; 1.163 of the Dominican and French Civil Code; 953 of the Haitian Civil Code; 1.578 of the Honduran Civil Code; 1.852 of the Mexican Civil Code; 2.498 of the Nicaraguan Civil Code; 1.134 of the Panamanian Civil Code; 1.235 of the Puerto Rican Civil Code; 952 of the Saint Lucian Civil Code), which reduce the generality of contract clauses, so that goods or cases that are different from those on which the parties intended to contract cannot be considered as included. This subjectivistic trend is clearly maintained in the Proposals for Reform of the French law on obligations of 2013 (Article 96), although it is more obviously shifting towards a rule for objectifying the parties' intention, which is done based on a “reasonable“ criteria when intention cannot be inferred, while subjective and intentional interpretation appears more as a principle. This is the orientation followed by the majority of harmonised international texts [Articles 8 CISG; II-8:101 DCFR; 5:101 PECL; 4.1 (1) UP].

The second option, characteristic of the Anglo-American model, gives preference to objective and grammatical signs and focuses on the sense of the terms used by the parties. The severity of this strict interpretation of contractual terms (four corners doctrine) is fundamentally based on the parol evidence rule, which prevents the parties from presenting declarations and evidence extrinsic to the contract to modify, alter or modulate what the terms say. However, formalist severity of grammatical interpretation of traditional English law has experienced significant changes in recent times. US law has progressively relaxed towards an interpretation model more open to subjective elements, as suggested by Section 201 (2) of the Restatement (Second) and the very application of Article 8 CISG by North American courts. English law itself has also been eased, due above all to the increasing significance of context and background of the contract. This development has been emphasised since the decision of the House of Lords in Investors Compensation Scheme Ltd v West Bromwich Building Society (1998, 1 WLR 896), where Lord Hoffmann set out several principles to be require consideration of all elements of context to interpret contract terms and even to determine their own ambiguity. He also declared that that the parol evidence rule is disregarded in English law.

The objectivistic focus progressively adopted by civil law systems, combined with the reduction in the interpretative formalism of common law have, therefore, recently enabled a convergence which, although it does not definitively reconcile the two legal systems, at least facilitates the proposal of uniform rules that could be shared in essence by all legal traditions within the OHADAC area.

2. Scope of the “in claris non fit interpretatio” principle

Whatever the general option adopted to guide the interpretation of ambiguous contractual terms, all legal systems have one thing in common related to the scope of the principle and summarised in the rule “in claris non fit interpretatio”. To a certain extent, the interpretation of contractual terms is necessary only when their meaning is not obvious or manifestly clear. If terms are clear and unambiguous, there is no room to think about interpretation (first paragraph of Article 4.1.1).

From a strictly linguistic point of view, it must be pointed out that in actual fact, clear terms do not exist and all meanings necessarily depend on context. However, from a legal viewpoint, this mentioned principle plays a significant role in order to achieve legal certainty; so that if contract clauses are clear, univocal and not contradictory, courts and arbitrators must observe their meaning and must not allow the parties to distort them through contradicting contextual evidence.

This principle has been expressly included, with slight differences, in the various Caribbean legal systems (e.g. Article 52 Cuban Civil Code). French case law (e g. decisions of the Cour de Cassation on 15 April 1982 and 14 December 1942) opted for a stricter approach favouring a literal meaning of a “clause claire et précise” (clear and precise clause), stated in Article 97 of the Proposals for Reform of the French law on obligations prepared by the Ministry of Justice in 2013. The rule in the Spanish Civil Code [Article 1.281, shared by the Mexican Civil Code (Article 1.851), Guatemalan Civil Code (Article 1.593), Nicaraguan Civil Code (Articled 2.496), Honduran Civil Code (Article 1.576), Panamanian Civil Code (Article 1.132) and Puerto Rican Civil Code (Article 1.233)] seems to recognise more easily the prevalence of contextual circumstances that put the true intent before the written terms. However, it must be stressed that such codes usually require an “evident” intent that is contrary to the written text; that is why it actually fits in the exception by mistake or manifest lapsus linguae included in Article 4.1.1 (2) of these Principles.

The proposed rule does not follow then the literal interpretative approach, which for a long time characterised English law and inspired many Caribbean systems, particularly those of the Caribbean islands. In fact, under the most traditional approach in English law, grammatical interpretation is not limited to the sense of words in ordinary language (primary language), but recognises the possibility for the parties of using a specialised language or tongue (secondary language). In such cases, when a term might have an ordinary meaning and a different sense in a specialised jargon this term is not clear in the sense of Article 4.1.1 (2) and therefore the principle included in Article 4.1.1 (1) will not be applied.

Although under English law, after the decision of the House of Lords in Investors Compensation Scheme Ltd v West Bromwich Building Society (1998, 1 WLR, 896), “contextualised” interpretation of contract prevails, it is uncontroversial that context cannot became a pretext to correct clear and precise contract terms [BCCI v Ali, National Bank of Sharjah v Dellborg (2001), 2 WLR, 731]. The aim does not differ from the principle set out in civil law systems. The difference lies in that civil law systems are apparently more inclined to consider contextual aspects reflecting the parties' intent in order to consider ambiguity of terms. In any case, both legal cultures can lead to inevitable divergences to decide if a term is clear, as stated in Article 4.1.1 (1), or ambiguous, as considered in Article 4.1.1 (2), but such divergences are inevitable regardless of competent courts and do not prevent the rule included in Article 4.1.1 from being shared by all legal systems represented in the OHADAC territory.

Otherwise, both in civil and in common law there are exceptions for lapsus calami, which are expressions apparently clear but that entail manifest mistakes in the light of the circumstances of the contract. While civil law systems solve these cases through the prevalence of the true intent of the parties, English law provides the recourse to action for rectification from equity law. Although there are different ways, whose availability is not prejudged by the Principles, both are compatible with exception included in paragraph 2 of Article 4.1.1.