Melvin Aron Eisenberg,
Expression Rules in Contract Law and Problems of Offer and Acceptance, 82
Cal L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/2012
The issue of interpretation is central to contract taw, because a major goat of that body of law is to facilitate the power of self-governing parties to further their shared objectives through contracting. Modern contract law has developed a set of general principles of interpretation that give a place to both objective and subjective elements, and must be applied on an individualized basis. However, a number of narrower black-letter rules give a purely objective and standardized interpretation to certain kinds of expressions, and these standardized interpretations may often differ from the meanings such expressions would be given under the general principles of contract interpretation. These narrower rules, which the author calls expression rules, generally have not been recognized as a special legal category, and partly for that reason have not been critically examined. The author argues that the use of expression rules in contract law is in need of justification. Several possible justifications are explored, and the resulting analysis is applied to various expression rules in the law of offer and acceptance. The author concludes that many expression rules are carry-overs from classical contract law, cannot be justified under modem principles of interpretation, and should be dropped or modified.