The contra proferentem rule has been under sustained attack in recent years, as judges doubt whether it has any role to play in modern commercial contract law. This article sheds light on the function of the rule by examining its historical development. The rule has been part of English contract law for over 600 years, playing very different roles at each stage of its development. Lawyers since the medieval period have criticised the rule, but have succeeded in continually repurposing it to fit with new conceptions of contract law and to address the most pressing concerns of their day. This article shows that the contra proferentem rule can provide a fascinating case study in the development of common law doctrine, and argues that the future need not be wholly bleak for one of our longest-lived canons of construction.

Bell has contributed much to the study of legal interpretation, perhaps most notably as editor of Cross's Statutory Interpretation. 1 He has also written helpfully about learning and teaching principles of interpretation. 2 Unsurprisingly, John brought his considerable expertise in comparative law to bear on this issue. In one article, John lamented that 'few books in the common law have dwelt at length on the jurisprudential aspects of statutory interpretation -what interpretation involves and how the choice of interpretations is rationally justified.' 3 Comparing practices and theories of interpretation across jurisdictions, he suggested, will generate valuable insights into the nature of interpretation itself, 4 as well as its interaction with legal institutions, values and practices more broadly. 5 Elsewhere, John has discussed the ways in which legal arguments and methods develop, 6 and how they are influenced by those of other jurisdictions. 7 * I am grateful to Andrew Bell, Adolfo Giuliani and Ian Williams for their very helpful comments. My thanks also go to Lorenzo Maniscalco and Jane Sancinito for their invaluable assistance with Latin texts.Original spelling has been retained in quotations, but punctuation has occasionally been modernised to aid comprehension. 1 John Bell and Sir George Engle (eds), Cross: Statutory Interpretation (2nd edn, Butterworth 1987); John Bell and Sir George Engle (eds), Cross: Statutory Interpretation (3rd edn, Oxford University Press 1995). 2 See, for example, John Bell, 'Studying Statute Law' (1993) 13 OJLS 130; John Bell, 'Teaching Statutory Interpretation' [2009] Statute Law Society paper accessed 17 August 2020. 3 Bell, 'Studying Statute Law' (n 2) 130. 4 ibid.

Close also joined the United Society of Boilermakers and Iron Shipbuilders. This trade union had been founded in 1834, and opened its Bradford branch in 1842. The Society's rules emphasised that its purpose was to provide for mutual relief and other benevolent purposes; 16 in keeping with the boilermakers' elevated position, its entrance fees were 'very high' and its benefits 'extremely generous'. 17 It also supported its members during strikes, 18 which became increasingly frequent as trade boomed in the early 1860s. 19 By 1866, the Society had over 9,000 members and held almost £20,000 in funds. 20 In 1865, Close was the treasurer of the Boilermakers' Bradford branch, entrusted with the key to its all-important cashbox. 21 Then disaster struck: the branch's accounts were audited by William Swan, a Society official, who found that Close owed the union almost £25. This was a sizeable sum, representing several months of a boilermaker's wages. The union initially sought to deal with the matter internally, but Close was unable to come up with the money. After six months, the Boilermakers lost patience; in January 1866, an information was laid against Close in the name of John Hornby, the branch president. 22 The Society, no stranger to thieving officers, 23 was determined to make an example of Close: its trade report stormed that he would not 'rob us with impunity'. 24 Earlier in the century, the Society would have been less bullish. At common law, an unincorporated association could only take legal action if all of its members acted in concert, a difficult task for a union to orchestrate. Furthermore, it was not a criminal offence for a member to embezzle the association's joint property, since he was one of its owners. 25 Improved statutory protection, however, was gradually extended to favoured organisations. In 1793, Parliament had 16 Mortimer (n 13) 51-3.

General rightsThis document is made available in accordance with publisher policies. Please cite only the published version using the reference above. Full terms of use are available:

No abstract