Held: That to have put the contractors at the mercy of the employers in making them liable to do whatever extra work the employers required without any increase in their profits, would have been absurd. On the true construction of the two contracts taken together the power to order variations did not entitle the employers to require work materially in excess of £5,000,000, so that the contractors were entitled to be paid reasonable profit on work beyond that amount. z
A non-lawyer may be forgiven for asking why the courts strained the literal words of the contract in order to do justice in this case, but not in the case cited on p. 5. A realistic answer must be that the former decision was one of exceptional judicial valour, and that the extent to which a judge will stretch the literal meaning of one part of a contract to make it consistent with the general intention of the parties, as shown by the rest of the contract and the surrounding circumstances, is largely a matter of temperament. As it has been put in a somewhat purple passage—“the whole matter ultimately turns on the impalpable and indefinable elements of judicial spirit and attitude”. aa
The following rules have been developed by the courts to help in finding the meaning of a contract which is not clear:
(i) Obvious clerical error s will be read as corrected, but as to figures see p. 12, N. 5. The words govern where there is a discrepancy between numbers given both written out and in figures. See also footnote (v) above.
(ii) Where as here part of a contract is in a standard printed form, any alterations or additions written in for the particular contract (for example special conditions added to the I.C.E. form) will be given greater weight than any inconsistent standard clauses. It does not seem that this principle is negated by the opening of this cl. 5. bb
(iii) Corrections and erasures are presumed to have been made before signature of the contract, and therefore to be valid; alterations proved to have been made after signature are not valid unless agreed to by both parties, and the party making the alterations cannot enforce the contract. It has been held that the courts may refer to a deletion made by the parties from a printed form of contract as an aid to interpreting what they have chosen to leave in. It is likely that the courts will do so cautiously; often one party agrees to a deletion only because he is satisfied that the words remaining have the same meaning despite it. cc
(iv) There are a number of technical rules which the courts may apply. For example the eiusdem generis rule—that where there are words of a particular class followed by general words, the general words are construed as referring only to matters of the same class:
Extension of time clause applying where the works were “delayed by reason of any alteration or addition…or in case of combination of workmen, or strikes, or by default of the sub-contractors…or any cause beyond the contractor’s control”. Held: that the final category was intended to refer to causes of the same class as the examples given, and did not include delay caused by the employer. dd
There is also a slight presumption that a change of words implies a change of meaning, and that the same word or phrase is intended to have the same meaning throughout a contract.
These presumptions presuppose a perfect draftsman—it is for example very difficult to maintain complete consistency in a complicated contract—and are therefore applied by the courts with extreme caution.
(v) An ambiguity will be interpreted in the way least favourable to the party who had control over the drafting, usually the employer but the contractor in the case of tender qualifications (p. 20) or method-related charges written in by him (p. 218). ee
(vi) Provisions for which no meaning can be discovered may be ignored, but this may in exceptional cases make the whole contract too uncertain to be enforced (p. 1 (a)).
(vii) A negative principle is that in construing a contract the courts are not entitled to take into account the conduct of the parties subsequent to the execution of the contract in deciding on the meaning to be given to it. Of course, consistent with the principles discussed on pp. 5–6, the courts will not hear evidence of what was said or done by the parties in negotiations before the contract was made as to its intended meaning, but they will hear general evidence on the circumstances surrounding the contract, the setting of the contract, so as to understand what it is about.