Reviewed by: Paul Bowden
Author: Gerard McMeel
Publisher: Oxford University Press
ISBN: 978-0-19-958248-8
Price: £175

For the commercial practitioner, Professor Gerard McMeel’s book is a salutary but highly rewarding read. To get a deal done, a reliance on office practice notes and standard forms is near universal.

The inviolability of the entire agreement clause; the safety net of rectification (if it turns out that the clients have been negotiating in the early hours at cross purposes), and implying contractual terms only to fill in the gaps and not to interpret what has been written - these are some of the home truths, absorbed at law school, which also inform the professional knowledge base of the hard-pressed contract lawyer.

In his survey of judicial trends and recent leading cases, McMeel reveals that boilerplate contract language is not always watertight and that many of the truths about contractual interpretation we rely on are, at best, half-truths or former truths.

The principles, policies and presumptions underlying the interpretation and enforcement of contracts is an area of undiminished judicial activity, despite McMeel’s own statement that the period between the publication of the first and second editions of his book has been one of ‘consolidation rather than development’.

The House of Lords’ effective melding of the principles of contractual interpretation and the rectification of contracts into a single approach to construction, and the obituary for the parol evidence rule announced in Chartbrook Ltd v Persimmon Homes Ltd (2009), are of note. In the same year, the Privy Council in the Belize Telecom case seems to have finally retired the ‘officious bystander’ (pretty much on his 70th birthday after his first appearance in Shirlaw v Southern Foundries in 1939).

These, and other shifts and challenges to conventional understandings of how the courts will manage disputed contracts, are analysed and laid out by McMeel with clarity and in detail - and with the dual insight of a lawyer who is both a practising advocate and leading academic.

McMeel may, in writing this book, have found himself painting the Forth Bridge. The potentially fatal attraction of sidelining an intractable negotiating point into a ‘best/reasonable endeavours’ clause to get the deal closed received new scrutiny in the CPC Group Ltd v Qatari Diar Real Estate Investment Company (Chelsea Barracks) case in 2010. This must have been as McMeel was submitting his manuscript for this second edition. His thoughts on this one important topic alone justify a third edition.

The Construction of Contracts is more than a work of re-education for those in practice. It is ‘a book of parts’. Its range covers a personal and scholarly account of the evolution of the principles of contractual construction and a series of chapters on the nuts and bolts of exemption clauses, unfair contact terms force majeure, misrepresentation and remedies (which any law undergraduate aspiring to a good degree would profit from reading). There is a diverting side tour for those who want to visit the world of Wittgenstein and Chomsky and their ‘language games’ and theories of linguistics.

The book, in its final chapters, also deals with the authenticity of documents and issues of evidence and admissibility. These are perhaps the weaker parts; thinner than the rest of the topics and laconic in their treatment of the issues of spoliation and e-disclosure that are currently hot topics for the commercial litigator. They do not detract from what is altogether an outstanding work, but do leave the reader wondering, ‘was it worth going there?’

It is also a brave book. Sir Kim Lewison’s The Interpretation of Contracts first appeared in 1989 and, now in its fifth edition (2011), might have been thought to be the last word on the subject. The territory which the two books survey is largely the same and their structures are not dissimilar. Paying tribute to Lewison in his preface, McMeel alerts us that his book ‘will differ on many points of detail’. Again, an under-statement from McMeel.

What is brave about McMeel is that it is a highly personal work. The author’s opinions and commentary on judicial trends and individual cases are boldly stated and clearly firmly held. On some issues, a vigorous dialectic between Lewison and McMeel emerges. For those who need to understand the ‘new truths’ about construing and enforcing contracts they are essential bookshelf companions.

Paul Bowden is a partner at Freshfields Bruckhaus Deringer

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