1887

oa De Jure - Ignore this heading. It will not influence your interpretation of this article … or will it?

Volume 52 Number 1
  • ISSN : 2225-7160

 

Abstract

The contractual drafting process has been plagued with the copy-and-paste phenomena in which clauses are often incorporated into an agreement on the strength that such a clause is considered standard or a boilerplate, with little consideration to the rationale for its potential interpretative value in a contract. A headings clause has fallen victim to this drafting practice. A headings clause is often used as an interpretative tool to address the manner in which headings would be interpreted within the context of a contract. Headings certainly have practical purposes and normally serves as a navigational tool, but may also have interpretational value on the substantive provisions of a contract. This paper considers four scenarios in which headings could impact the interpretation of a contract and the influence a headings clause may have in such scenarios. A headings clause could, for example, only require the interpreter to consider headings for convenience and thereby circumvent any other interpretative value of the heading, other than serving as a navigational tool. Headings clauses may also exclude the operation of headings from the interpretative processes altogether in which case the interpreter is directed to ignore the headings used in the contract. Although strictly speaking this would mean that headings cannot be used in the interpretation process at all, it seems likely that headings would still under the circumstances be used as navigational tools. On occasion headings may influence the interpretation of subclauses, or sub-clauses may be incorrectly drafted which headings may then clarify. Headings may also inaccurately reflect the content of the agreement or sub-clauses which may lead to the availability of iustus error to escape the contract. Headings clauses may be included in a contract in an attempt to circumvent such risks and create a safety net for drafting errors. It is apparent that a headings clause would have an impact on the interpretation of the contract and can hardly be considered as a standard provision within a contract.

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/content/journal/10520/EJC-1ac2cff369
2019-04-01
2020-09-25

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