INTERPRETATION. The explication of a law, agreement, will, or other
instrument, which appears obscure or ambiguous.
2. The object of interpretation is to find out or collect the intention
of the maker of the instrument, either from his own words, or from other
conjectures, or both. It may then be divided into three sorts, according to
the different means it makes use of for obtaining its end.
3. These three sorts of interpretations are either literal, rational,
or mixed. When we collect the intention of the writer from his words only,
as they lie before us, this is a literal interpretation. When his words do
not express his intention perfectly, but either exceed it, or fall short of
it, so that we are to collect it from probable or rational conjectures only,
this is rational interpretation and when his words, though they do express
his intention, when rightly understood, are in themselves. of doubtful
meaning, and we are forced to have recourse to like conjectures to find out
in what sense he used them this sort of interpretation is mixed; it is
partly literal, and partly rational.
4. According to the civilians there are three sorts of interpretations,
the authentic, the usual, and the doctrinal.
5.-1. The authentic interpretation is that which refers to the
legislator himself, in order to fix the sense of the law.
6.-2. When the judge interprets the law so as to accord with prior
decisions, the interpretation is called usual.
7.-3. It is doctrinal when it is made agreeably to rules of science.
The Commentaries of learned lawyers in this case furnish the greatest
assistance. This last kind of interpretation is itself divided into, three
distinct classes. Doctrinal interpretation is extensive, restrictive, or
declaratory. 1st. It is extensive whenever the reason of the law has a more
enlarged sense than its terms, and it is consequently applied to a case
which had not been explained. 2d. On the contrary, it is restrictive when
the expressions of the law have a greater latitude than its reasons, so that
by a restricted interpretation, an exception is made in a case which the law
does not seem to have embraced. 3d. When the reason of the law and the terms
in which it is conceived agree, and it is only necessary to explain them to
have the sense complete, the interpretation is declaratory. 8. The term
interpretation is used by foreign jurists in nearly the same sense that we
use the word construction. (q. v.)
9. Pothier, in his excellent treatise on Obligations, lays down the
following rules for the interpretation of contracts:
10.-1. We ought to examine what was the common, intention of the
contracting parties rather than the grammatical sense of the terms.
11.-2. When a clause is capable of two significations, it should be
understood in that which will have some operation rather than, that in which
it will have none.
12.-3. Where the terms of a contract are capable of two
significations, we ought to understand them in the sense which is most
agreeable to the nature of the contract.
13.-4. Any thing, which may appear ambiguous in the terms of a
contract, may be explained by the common use of those terms in the country
where it is made.
14.-5. Usage is of so much authority in the interpretation of
agreements, that a contract is understood to contain the customary clauses
although they are not expressed; in contractibus tacite veniunt ea quae sunt
moris et consuetudinis.
15.-6. We ought to interpret one clause by the others contained in the
same act, whether they precede or follow it.
16.-7. In case of doubt, a clause ought to be interpreted against the
person who stipulates anything, and in discharge of the person who contracts
the obligation.
17.-8. However general the terms may be in which an agreement is
conceived, it only comprises those things respecting which it appears that
the contracting parties proposed to contract, and not others which they
never thought of.
18.-9. When the object of the agreement is to include universally
everything of a given nature, (une universalite de choses) the general
description will comprise all particular articles, although they may not
have been in the knowledge, of the parties. We may state, as an example of
this rule, an engagement which I make with you to abandon my share in a
succession for a certain sum. This agreement includes everything which makes
part of the succession, whether known or not; our intention was to contract
for the whole. Therefore it is decided, that I cannot object to the
agreement, under pretence that considerable property has been found to
belong to the succession of which we had not any knowledge.
19.-10. When a case is expressed in a contract on account of any doubt
which there may be whether the engagement resulting from the contract would.
extend to such case, the parties are not thereby understood to restrain the
extent which the engagement has of right, in respect to all cases not
expressed.
20.-11. In contracts as well as in testaments, a clause conceived in
the plural may be frequently distributed into several particular classes.
21.-12. That which is at the end of a phrase commonly refers to the
whole phrase, and not only to that which immediately precedes it, provided
it agrees in gender and number with the whole phrase.
22. For instance, if in the contract for sale of a farm, it is said to
be sold with all the corn, small grain, fruits and wine that have been got
this year, the terms, that have been got this year, refer to the whole
phrase, and not to the wine only, and consequently the old corn is not less
excepted than the old wine; it would be otherwise if it had been said, all
the wine that has been got this year, for the expression is in the singular,
and only refers to the wine and not to the rest of the phrase, with which it
does not agree in number. Vide 1 Bouv. Inst. n. 86, et seq.
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