L’INTERPRÉTATION DU CONTRAT D’ASSURANCE CONSTRUCTION : DE L’INTENTION COMMUNE DES CONTRACTANTS AU PRÉCÉDENT DE COMMON LAW

Abstract

This article provides an overview of the interpretive theory of contracts in civil law and goes on to demonstrate how the judicial interpretation of construction contracts differs from classic theory. While the basic rule for interpreting any contract is to search for common intent between the contracting parties, the interpretation of construction insurance contracts is an important exception to this rule because it relegates common intent to a secondary role. The interpretation of construction insurance contracts is more literal or will be based on the need for insurance, which is similar to but different than common intent. The notion of need for insurance is two-pronged: the insured’s need (micro) and the industry’s need (macro). This latter aspect certainly explains the weight given to interpretive precedents, which are characteristic of the interpretation of construction insurance contracts. Lastly, the processes noted lay the foundations for a possible interpretive theory of standard contracts.