Rules of Construction

Construction. Cf. Former laws; Original jurisdiction; Original intent;

Practice. It is defined by Mr. Powell to be “the drawing in inference by the act of reason, as to the intent of an instrument, from given circumstances, upon principles deduced from men’s general motives, conduct and action.” This definition may, perhaps, not be sufficiently complete, inasmuch as the term instrument generally implies something reduced into writing whereas construction is equally necessary to ascertain the meaning of engagements merely verbal. In other respects it appears to be perfectly accurate.

The Treatise of Equity, defines interpretation to be the collection of the meaning out of signs the most probable. 1 Powell on Con. 370. There are two kinds of constructions; the first, is literal or strict; this is uniformly the construction given to penal statutes. 1 Bl. Com. 88; 6 Watt’s & Serg. 276; 3 Taunt. 377. 2d. The other is liberal, and applied, usually, to remedial laws, in order to enforce them according to their spirit. In the supreme court of the United States, the rule which has been uniformly observed “in construing statutes, is to adopt the construction made by the courts of the country by whose legislature the statute was enacted. This rule may be susceptible of some modification when applied to British statutes which are adopted in any of these states. By adopting them, they become our own, as entirely as if they had been enacted by the legislature of the state. The received construction, in England, at the time they are admitted to operate in this country – indeed, to the time of our separation from the British empire – may very properly be considered as accompanying the statutes themselves, and forming an integral part of them. But, however we may respect the subsequent decisions (and certainly they are entitled to great respect,) we do not admit their absolute authority. If the English courts vary their construction of a statute, which is common to the two countries, we do not hold ourselves bound to fluctuate with them. 5 Pet. R. 280. The great object which the law has in all cases, in contemplation, as furnishing the leading principle of the rules to be observed in the construction of contracts, is, that justice is to be done between the parties, by enforcing the performance of their agreement, according to the sense in which it was mutually understood and relied upon at the time of making it. When the contract is in writing, the difficulty lies only in the construction of the words; when it is to be made out by parole testimony, that difficulty is augmented by the possible mistakes of the witnesses as to the words used by the parties; but still, when the evidence is received, it must be assumed as correct, when a construction is to be put upon it. The following are the principal rules to be observed in the construction of contracts. When. the words used are of precise and unambiguous meaning, leading to no absurdity, that meaning is to be taken as conveying the intention of the parties. But should there be manifest absurdity in the application of such meaning, to the particular occasion, this will let in construction to discover the true intention of the parties: for example; 1st. When words are manifestly inconsistent with the declared purpose and object of the contract, they will be rejected; as if, in a contract of sale, the price of the thing sold should be acknowledged as received, while the obligation of the seller was not to deliver the commodity. 2 Atk. R. 32. 2d. When words are omitted so as to defeat the effect of the contract, they will be supplied by the obvious sense and inference from the context; as, if the contract stated that the seller, for the consideration of one hundred dollars, sold a horse, and the buyer promised to pay him for the said horse one hundred, the word dollars would be supplied. 3d. When the words, taken in one sense, go to defeat the contract, while they are susceptible of another construction which will give effect to the design of the parties, and not destroy it, the latter will be preferred. Cowp. 714. The plain, ordinary, and popular sense of the words, is to be preferred to the more unusual, etymological, and recondite meaning or even to the literal, and strictly grammatical construction of the words, where these last would lead to any inefficacy or inconsistency. When a peculiar meaning has been stamped upon the words by the usage of a particular trade or place in which the contract occurs, such technical or peculiar meaning will prevail. 4 East, R. 135. It is as if the parties in framing their contract had made use of a foreign language, which the court is not bound to understand, but which on evidence of its import, must be applied. 7 Taunt. R. 272; 1 Stark. R. 504. But the expression so made technical and appropriate, and the usage by which it has become so, must be so clear that the court cannot entertain a doubt upon the subject. 2 Bos. & P. 164; 3 Stark. Ev. 1036; 6 T. R. 320. Technical words are to be taken according to their approved and known use in the trade in which the contract is entered into, or to which it relates, unless they have manifestly been understood in another sense by the parties. Vide 16 Serg. & R. 126. The place where a contract has been made, is a most material consideration in its construction. Generally its validity is to be decided by the law of the place where it is made; if valid there, it is considered valid every where. 2 Mass. R. 88; 1 Pet. R. 317 Story, Confl. of Laws, 2; 4 Cowen’s R. 410, note; 2 Kent, p. 39, 457, in the notes 3 Conn. R. 253, 472; 4 Conn. R. 517. Its construction is to be according to the laws of the place where it is made for example, where a note was given in China, payable eighteen months after date, without any stipulation as to the amount of interest, the court allowed the Chinese interest of one per centum per month from the expiration of the eighteen mouths. 1 Wash. C. C. R. 253; see 12. Mass. R. 4, and the article Interest for money. Previous conversations, and all that passes in the course of correspondence or negotiation leading to the contract, are entirely superseded by the written agreement. The parties having agreed to reduce the terms of their contract to writing, the document is constituted as the only true and final exposition of their admissions and intentions; and nothing which does not appear in the written agreement will be considered as a part of the contract. 5 Co. R. 26; 2 B. & C. 634; 4 Taunt. R. 779. But this rule admits of some exceptions; as, where a declaration is made before a deed is executed, showing the design with which it was to be executed, in cases of frauds; 1 S. & R. 464; 10 S. & R. 292; and trusts, though no trust was declared in the writing. 1 Dall. R. 426; 7 S. & R. 114. All contracts made in general terms, in the ordinary course of trade, are presumed to incorporate the usage and custom of the trade to which they relate. The parties are presumed to know such usages, and not to intend to exclude them. But when there is a special stipulation in opposition to, or inconsistent with the custom, that will of course prevail. Holt’s R. 95. When there is an ambiguity which impedes the execution of the contract, it is first, if possible, to be resolved, on a view of the whole contract or instrument, aided by the admitted views of the parties, and, if indispensable, parole evidence may be admitted to clear it, consistently with the words. 1 Dall. R. 426; 4 Dall. R. 34 0; 8 S. & R. 609. When the words cannot be reconciled with any practicable or consistent interpretation, they are to be considered as not made use of ” perinde sunt ac si scripts non essent.” It is the duty of the court to give a construction to all written instruments; 3 Binn. R. 337; 7 S. & R. 372; 15 S. & R. 100; 4 S. & R. 279; 8 S. & R. 381; 1 Watts. R. 425; 10 Mass. R. 384; 3 Cranch, R. 180 3 Rand. R. 586 to written evidence 2 Watts, R. 347 and to foreign laws, 1 Penna. R. 388. For general rules respecting the construction of contracts, see 2 Bl. Com. 379; 1 Bouv. Inst. n. 658, 669; 2 Com. on Cont. 23 to 28 3 Chit. Com. Law, 106 to 118 Poth. Oblig. P. 1, c. 1, art. 7; 2 Evans’ Poth. Ob. 35; Long on Sales, 106; 1 Fonb. Eq. 145, n. b Id. 440, n. 1; Whart. Dig. Contract, F; 1 Powell on Contr. 370 Shepp. Touchst. c. 5 Louis. Code, art. 1940 to 1957; Corn. Dig. Merchant, (E 2,) n. j.; 8 Com. Dig. tit. Contract, iv.; Lilly’s Reg. 794; 18 Vin. Abr. 272, tit. Reference to Words; 16 Vin. Abr. 199, tit. Parols; Hall’s Dig. 33, 339; 1 Ves. Jun. 210, n.; Vattel, B. 2, c. 17; Chit. Contr. 19 to 22; 4 Kent. Com. 419; Story’s Const. § 397-456; Ayl. Pa d. B. 1, t. 4; Rutherf. Inst. B. 2, c. 7, § 4-11; 20 Pick. 150; 1 Bell’s Com. 5th ed. 431; and the articles, Communings; Evidence; Interpretation; Parol; Pourparler. As to the construction of wills, see 1 Supp. to Ves. Jr. 21, 39, 56, 63, 228, 260, 273, 275, 364, 399; 1 United States Law Journ. 583; 2 Fonb. Eq. 309; Com. Dig. Estates by Devise. N 1; 6 Cruise’s Dig. 171 Whart. Dig. Wills, D. As to the Construction of Laws, see Louis. Code, art. 13 to 21; Bac. Ab. Statutes, J; 1 Bouv. Inst. n. 86-90; 3 Bin. 858; 4 Bin . 169, 172; 2 S. & R. 195; 2 Bin. 347 Rob. Digest, Brit. Stat. 370; 7 Term. Rep. 8 2 Inst. 11, 136; 3 Bin. 284-5; 3 S. & R. 129; 1 Peere Wms. 207; 3 Burr. Rep. 1755-6; 3 Yeates, 108; 11 Co. 56, b; 1 Jones 26; 3 Yeates, 113 117, 118, 120; Dwarris on Statutes; Benigne faciendæ sunt interpretationes propter simplicitatem liacorum, ut res magis valeat quam pereat; et verba intentione, non e contra, debent inservire;Certainty; Common intent; Est ipsorum legislatorum tanquam viva vox; Negative inference; Sic interpretandum est ut verba accipiantur cum effectu; Vagueness doctrine;

BILL OF RIGHTS:

Article IX – Rule of construction of Constitution. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Ratified 12/15/1791.

Constructions. It is the duty of the court to give a construction to all written instruments; 3 Binn. R. 337; 7 S. & R. 372; 15 S. & R. 100; 4 S. & R. 279; 8 S. & R. 381; 1 Watts. R. 425; 10 Mass. R. 384; 3 Cranch, R. 180 3 Rand. R. 586; to written evidence: 2 Watts, R. 347 and to foreign laws, 1 Penna. R. 388. For general rules respecting the construction of contracts, see 2 Bl. Com. 379; 1 Bouv. Inst. n. 658, 669; 2 Com. on Cont. 23 to 28; 3 Chit. Com. Law, 106 to 118 Poth. Oblig. P. 1, c. 1, art. 7; 2 Evans’ Poth. Ob. 35; Long on Sales, 106; 1 Fonb. Eq. 145, n. b Id. 440, n. 1; Whart. Dig. Contract, F; 1 Powell on Contr. 370 Shepp. Touchst. c. 5; Louis. Code, art. 1940 to 1957; Corn. Dig. Merchant, (E 2,) n. j.; 8 Com. Dig. tit. Contract, iv.; Lilly’s Reg. 794; 18 Vin. Abr. 272, tit. Reference to Words; 16 Vin. Abr. 199, tit. Parols; Hall’s Dig. 33, 339; 1 Ves. Jun. 210, n.; Vattel, B. 2, c. 17; Chit. Contr. 19 to 22; 4 Kent. Com. 419; Story’s Const. § 397-456; Ayl. Pa d. B. 1, t. 4; Rutherf. Inst. B. 2, c. 7, § 4-11; 20 Pick. 150; 1 Bell’s Com. 5th ed. 431; and the articles, Communings; Evidence; Interpretation; Parol; Pourparler;

N.B. An absolute, unqualified sentence (or proposition) needs no expositor {Absoluta sententia expositore non indiget; 2 Coke, Inst. 533}; From the words of the law there should be no departure {A verbis legis non est recendendum; Broom’s Max. 268; 5 Rep. 119; Wing. Max. 25}; Constructions should be liberal, on account of the ignorance of the laity, or non-professional persons, so that the subject-matter may avail rather than perish; and the words must be subject to the intention, and not the intention to the words {Benigne faciendæ sunt interpretationes propter simplicitatem liacorum, ut res magis valeat quam pereat; et verba intentione, non e contra, debent inservire}; Laws are to be more favorably interpreted, that their intent may be preserved {Benignius leges interpretandæ sunt quo voluntas earum conservetur}; The construction of law works not an injury {Construction legis non facit injuriam; Coke, Litt. 183; Broom’s Max. 259}; The voice of the legislators themselves is like the living voice; the language of a statute is to be understood and interpreted like ordinary spoken language {Est ipsorum legislatorum tanquam viva vox}; It concerns the commonwealth that things adjudged be not rescinded {Interest reipublicæ res judicatas non rescindi}; There should be no departure from common observance {Non est recedendum a communi observantia; 2 Co. 74}; The best mode of interpreting laws is to make them accord {Optimus interpretandi modus est sic legis interpretare ut leges legibus accordant; 8 Coke, 169}; That which bars those who have make a contract will bar their successors also {Quod ipsis qui contraxerunt obstat, et successoribus eorum obstabit}; The thing speaks for itself {Res ipsa loquitur}; A statute is to be so interpreted that the words may be taken with effect {Sic interpretandum est ut verba accipiantur cum effectu}; Statutes made for the public good ought to be liberally construed {Statuta pro publico commodo late interpretantur}; When anything is granted, that also is granted without which the thing granted cannot exist {Ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest}; and that class of authority, infra:

28 U.S.C. § 1366 (Construction of references to laws of the United States or Acts of Congress) (For the purposes of this chapter, references to laws of the United States or Acts of Congress do not include laws applicable exclusively to the District of Columbia.);

ORS 42.230 (Office of judge in construing instruments) (In the construction of an instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all.); Hunnell v. Roseburg Resources Co., 00 CV 0693 CC; A114411 (Or. 08/07/2002); Olson v. Van Horn, 182 Or App 264, 48 P3d 860, rev den, 334 Or 631 (2002);

ORS 174.010 (General rule for construction of statutes) (In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.);

ORS 174.020 [Amended by 2001 c.438 §1] (Legislative intent; general and particular provisions; consideration of legislative history) (1)(a) In the construction of a statute, a court shall pursue the intention of the legislature if possible. (b) To assist a court in its construction of a statute, a party may offer the legislative history of the statute. (2) When a general and particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls a general intent that is inconsistent with the particular intent. (3) A court may limit its consideration of legislative history to the information that the parties provide to the court. A court shall give the weight to the legislative history that the court considers to be appropriate.);

ORS 174.030 (Construction favoring natural right to prevail) (Where a statute is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to prevail.);

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FTT, JD on Bill of Rights (03.18.16)