The Gazette 1989

GAZETTE

DECEMBER 1989

The Book is structured into separate chapters with numbered paragraphs. Each of these is headed with a statement of principle, which is then discussed in some depth with copious and often generous excerpts from judgments. The Author deals both with views which have subsequently been over-ruled and those which do not always coincide with his own. Many of the paragraphs are f o l l owed by illustrative summaries of decided cases, which are incidentally pres- ented in such a manner as to tempt the reader to test his own mettle. The entire subject derives essentially from case law as is demonstrated aptly by this work. The latter is full of material not otherwise available in a single volume of recent vintage. Not only are the mainstream avenues ex- plored therein, but the Author embarks on enlightening forays into the territories of exemption pro- visions, penalty clauses, implied terms, the primacy (or otherwise) of plans and a myriad of other inter- esting topics. In appropriate cases, he explains why the application of a particular doctrine may produce varying results, as in the instances of executory and executed con- tracts. There is a fund of informa- tion and I anticipate that the views expressed will, for the most part, find favour. It should be noted that the interpretation of wills and statutes and the important remedy of rectification are outside the scope of this book. The absence of references to Irish decisions is hardly a reflection on Mr. Lewison's compilation. The general principles enunciated will, for the most part, be applicable within this jurisdiction, and the few instances where warning bells might have to be sounded for Irish readers are sufficiently identifiable as not to warrant mention here. Where a publication is funda- mentally meritorious, the primary task of a reviewer must be to draw attention to its existence. This volume may be so categorised, and its excellence tempts universal recommendation. I would, however, regard it more as a work of refer- ence rather than a text book, though this is not, of course, to suggest that it should be eschewed by students or omitted from their curricula. It would be an important

addition to the libraries of practising and academic lawyers and those engaged in the field of arbitration. The need for this book is not, per se, a condemnation of the manner in which lawyers have applied themselves to the art of drafting. After all, well worded documents do, for one reason or another, become the subject of litigation. It is nevertheless true that the bulk of the cases wherein the intervention of the Courts is sought in the areas of construction and interpretation owe their presence there to defective drafting or poor appreci- ation of underlying circumstances. Even allowing for the assistance derived from modern technology, the flurry and fluster of professional practice militate against the allocation of the time, application, patience and persistence, which is so often required in order to achieve the ideal in drafting terms. Occasionally a document launched in good order will be rendered a nonsense by the ravages of amend- ments, the consequences of which may pass unnoticed in the heat of negotiation or because of other pressures. I have one serious reservation about Mr. Lewison's book. This concerns the index, which I found to be very inadequate in point of detail. However, my commenda- tions still stand. • Patrick Fagan Solicitor THE IRISH INST I TUT IONAL INVESTMENT REFERENCE JOURNAL 1989 Anglesea Publications Ltd., Dublin 1989 (Telephone 681355, Fax 681678) Ed. Dr. Terence Ryan, TCD. 194 pp. Hardback. IR£37.50 (incl. p&p). The appearance of this most inter- esting publication coincides with a period of rapid change in the Irish financial markets. Exchange con- trols have been relaxed significantly this year, the property market has surged after almost a decade of stagnation, technical developments (especially in information process- ing, computing and telecommunica- tions) continue apace and 1992 approaches. The first issue of this Journal (which will presumably appear annually) contains over 30 articles spread over approximately 140 4 0 9

BOOK REVIEWS

THE INTERPRETATION OF CONTRACTS By Kim Lewison Published by Sweet & Maxwell Pages: 368 (Text) xlix (Table of Cases etc) Price: UK £45.00 The title of this beautifully written, well researched and attractively presented book could, to an extent, be said to belie its content, which covers in considerable detail not only the interpretation, but also the construction, of contracts, and ex- tends to kindred areas in the realm of deeds. It sets out to fill a gap (which undoubtedly needed filling) and, in so doing, spans a wide canvas magnificently. What else could be expected from the pen of so eminent a lawyer as Mr. Kim Lewison, whose impressive know- ledge and expertise is reflected throughout the work? The construction and interpreta- tion of documents is not by any means an exact science. Indeed, its study can be one of great frustra- tion, each case being so dependent, initially, upon the precision of ex- pression and the particularity of circumstances, and, ultimately, on the view taken by the Court in the face of such arguments as are advanced to it. The topic is vast in scope, vague in perception, and complex in application. Neverthe- less, certain principles have em- erged, and these have been diagnosed, dissected and ventilated by Mr. Lewison with great thorough- ness. Some of the relevant concepts have the force of rules of law, whilst others are merely guidelines. Many are clothed with the mantle of established respectability, whilst a number appear to have been culled painstakingly by the Author from more recent decisions. Although these canons of construction are in the nature of beacons towards en- lightenment, they sometimes shine in different directions. Mr. Lewison makes a most valiant effort to cut through all the inherent obscurities, and has succeeded in categorising the various elements in a manner which is both discernible and practicable.