Assignment on Traditional and Modern Law in the Contract Interpretation

Introduction contract interpretation

Contract interpretation is a method that is used when there is a dispute among the words, terms, or any kind of definition that is prevailing in the contract. In the contract interpretation, the contract is reviewed by the court if there is a dispute means the parties who are holding the contract[1]. Then the court will help to dissolve the disagreement that has rise due to the contract[2].

Importance of contract interpretation in commercial law

The contract interpretation is important in the commercial law because in many cases the parties that have dispute among the each other and the other party over the contract do select a method to express and interpret the contract, so to overcome this dispute between the two parties the court helps in solving the problems and to dissolve the dispute between the parties because if the court leaves it on the two parties to solve the dispute and to overcome the problem and dissolve it, the two parties might not solve the problem properly[3]. So the government is engaged in solving the problems to overcome this dispute and the fight between the two parties[4]. That is why the interpretation of the contract is necessary to solve the real problems.[5]

Contract interpretation is necessary for the commercial law to avoid some problems, including no mutual understanding between the parties, and this causes dispute a sometimes leads to serious situations like murder and kidnapping, moreover sometimes destruction is caused due to such disputes[6]. And to avoid these situations, the court is responsible for taking the decision of both the parties in terms of the contract interpretation[7].

Contextual approach of Traditional and Modern Law in the Contract Interpretation

The contextual approach provides all the background information about the contact so that the contract can be interpreted easily[8]. The main advantages of the contextual approach are that it allows making the sense of the whole act and the whole contract, moreover it allows the judges to see from a broader perspective, and it also allows the judges to consider the technological changes and the social changes that might occur in the contract[9]. The disadvantage of the contextual approach is that it’s mainly undemocratic, and on the other hand, it also causes uncertainty when the judges change meaning s oaf any statue.[10]

Research question of Traditional and Modern Law in the Contract Interpretation

“How traditional and modern law in the contract interpretation help to protect the traditional and modern knowledge that prevails in the world?”

Difference between critical contrasts (tradition v modern)

Traditional laws

The traditional laws are the laws that are basically a set of practices, beliefs, traditions, and customs and this law is ruled by the local community and the indigenous people of the society[11]. In the traditional laws the government does not impose any decision upon the parties; it is up to parties what they decide. Tradition la laws are the laws that save the knowledge of the tradition in the culture. Traditional laws are one of the holistic approaches and this includes the different leas[12]. The indigenous laws and customary laws. And all these laws help to protect the traditional knowledge that prevails in the world[13]. The traditional laws have an advantage for the people of the community because this law serves the community in the following ways: [14]

·         This law gives the rights to the people of the community that are surviving in the community because all laws do not support the community and give the members of the community all the rights. [15]

·         Moreover, it helps in establishing the rights of the community over traditional knowledge.[16]

·         This law creates a relationship between the people and the knowledge because knowledge is one of the basic factors in the traditional laws as the traditional law prevents the traditional knowledge of a community. [17]

·         It helps to guide or determine the procedures that are needed to be followed in the community to secure the community's free prior informed consent. It limits access to certain people for the use of traditional knowledge. As traditional knowledge is only saved for the persons who are willing to live in the community by following the traditions. [18]

·         It also guides for the assessment of the spiritual and the cultural damage and the other damages that are caused because the knowledge that is inappropriately used by certain people. [19]

·         It also helps to define the benefits of the use of traditional knowledge and how these benefits are shared equally in the organization. These laws should be equally shared with the people living in the community.[20]

·         It helps to solve the disputes or any kind of disagreement between the people over the ownership of some kind of this custodianship. Because most of the time, disputes occur between people over the land and its ownership or the ownership of any area[21].

·         It also helps to recognize the rights and give a guide for the transmission of the rights so that these traditional laws and the rights can be transmitted from one generation to the other. [22]

In the traditional laws, the contracts are interpreted according to the needs and the requirements of the people and not by the enforcement of the judges and the courts. [23]Traditional laws depend on the interpretation by the response of the people. People are involved in making decisions regarding traditional laws. In the traditional laws there are no written constitutions and the codified laws in the system[24].

Modern law of Traditional and Modern Law in the Contract Interpretation

In modern law, the decision is based upon the court and the judges, not on the local communities and the people. They are not responsible for making any decision, the government, the court, and the judge is responsible for taking the decision of any kind, and the contracts are interpreted according to the decision of the court. In modern law following things occur:[25]

·         The laws are based on written constitutions and are based on some of the specific codes. In modern law, the duties and the basic rights are provided to people that are certain in the field of the law. [26]

·         The common practice of modern law is done by the judges. And there is less freedom in the contract because in the contract the court takes all the holds an.

·         In modern law, the judges are not responsible for finding the laws, but they are responsible for the findings of the law, but in turn, the judges make the new laws.

·         New laws are developed by the judges and are implemented in society. And the judges make the laws according to their rules; they do not look over the people and the community and their needs. [27]

·         The modern law is basically made up of the rules that are used for the decision making, which the court has implemented and said that all these rules are the laws and these laws are the rules of the conduct and all the rules of the conduct which the court has but implemented are not laws[28]. Laws are only the rules that are implemented by the government. If the government does not implement any rule, then that rule is no law. And the judges in the court are the creators of the laws more than they are discoverers of the laws.

·         All the laws are created by the judges are implemented on the local community, the society, and the people. [29]

In modern law, the contract interpretation is made according to the court and the judges. There is no involvement of the people and the local community. [30]

What is a good faith?

The good faith in the contract interpretation is that both the parties and both the persons deal with each other fairly, honestly, and with good faith. And by dealing in a positive way with the good faith both the parties are stable and do not want to destroy the rights that belong to the other parties[31]. This good faith dealing creates the terms for both parties that both parties will remain honest with each other in the future and o not causes any harm and injury to the other part of the other person.[32] In the contract intyerpretation, good faith is necessary to create a positive relationship between both the parties and to dissolve the dispute between the parties and create a good relationship between both persons[33].

The difference between traditional law and modern law is very visible. Modern law is basically the law that is individual-based, that depends on the judge of the court, depending on a single person[34]. While the traditional law is the law that is community-based and it depends on the whole community and its decision. The modern law has a privileged position in the society and the community as this law is made by the judges and the police whereas the traditional law is the law that is made and is enforced by the communities. The traditional laws look over the rules and the rights of the large tribes[35], whereas the modern law takes a look and take care of the whole nation and the province and moreover the rights of the people living in the provinces and the nations. In the traditional law the contract interpretation is made by the people themselves, and in the modern law the contract interpretation is made according to the court and the judges. [36]

Four corner rules of Traditional and Modern Law in the Contract Interpretation

The four corner rules are used in the contract interpretation. These four corner rule is also known as the patrol evidence rule, and these rules define that the two parties have signed a written agreement and both the parties cannot use the oral agreements or the implies agreements in the court to defend themselves or to give the evidence against the other part. Generally, the four corner rules mean that the person and the parties can use all the things that rewritten in the agreement against the other party, but both the parties cannot use the agreements that are outside the written agreement[37], they cannot use any oral agreement against the party to defend themselves.  In the four corners of the contract, it is necessary to add all the expectations and the promises regarding the people that you have with the other party. Because written agreement is approved, if the party or the person relies on the oral commitments and the agreement than this will be problematic for the other person or the party because they do not have any proof of any kind of agreement forms the other person. The four corner agreements can be used to dissolve the dispute when the judge reads the written agreement, and then he will decide if the evidence from the external sources is necessary and if the evidence from the external sources is not required, then the judge will enforce the contract over both parties. [38] 

Conclusion of Traditional and Modern Law in the Contract Interpretation

In the end, it is concluded that traditional law and modern law both are used in society, but both are different[39]. Traditional law is better because it takes a close look at the things that are not important for the government, the people living in the small tribes and is small communities and this law is formed by the decision of the community on the other hand modern law is better because in this law, the law looks upon the whole nation and take cares of the rules of the whole nation and gives right to the people and the judges in the court take the decisions of the people who have any dispute.

Final Statement of Traditional and Modern Law in the Contract Interpretation

In my opinion both laws are better as people use the traditional law in the contract interpretation when both parties can solve the problem with mutual understandings with their cultural knowledge and with honesty. On the other hand people use modern law in the case when both parties do not want to settle with mutual understanding. Good faith is used but the court in the judges to settle down the dispute between the two parties with good faith, honesty, and fairness.

Bibliography of Traditional and Modern Law in the Contract Interpretation

Cases law of Traditional and Modern Law in the Contract Interpretation

Manna v agle star [1997] 2 WLR 945, [1997] UKHL 19, [1997] AC 749, [1997] 3 All ER 352, [1997] 24 EG 122

Pink floid music v EMI [2010] EWCA Civ 1429, [2011] 1 WLR 770

Investors v west brownwich [1997] UKHL 28

Rainy sky v kookmin bank [2011] UKSC 50

Yam seng v ITC [2013] EWHC 111

Arnold v britton [2015] UKSC 36

MSC mediterrianean shipping v cottonex [2016] EWCA Civ 789

Wood v capital [2015] EWCA Civ 451

Statutes and statutory instruments

Limitation Act 1980

Sale of Goods Act 1979

Books

Estella, A., & Noriega, A. E. (2018). Legal Foundations of EU Economic Governance. Cambridge University Press.

Miller, R. L. (2011). Cengage Advantage Books: Modern Principles of Business Law: Contracts, the UCC, and Business Organizations. Cengage Learning.

Slocum, B. G. (2015). Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation. University of Chicago Press.

Stone, R. (2005). The Modern Law of Contract. Psychology Press.

Journal Article of Traditional and Modern Law in the Contract Interpretation

Benda-Beckmann, K. V. (2001). Folk, Indigenous, and Customary Law. International Encyclopedia of the Social & Behavioral Sciences , 5705-5708.

DiMatteo, L. A. (2018). Contract Stories: Importance of the Contextual Approach to Law. WASHINGTON LAW REVIEW , 88 (1), 1287-1322.

 Websites of Traditional and Modern Law in the Contract Interpretation

Gonol, D. (2017, March 17). Customary law versus modern law. Retrieved from thenational.com: https://www.thenational.com.pg/customary-law-versus-modern-law/