American Contract Law for a Global Age, 2017a

get the deal they intended, and the solution is to express themselves more clearly in
the future.
The alternative approach is to look at the words as merely part of the overall
transaction, and to try to determine not what the document says to a reasonable
reader, but what the parties subjectively meant it to say. The goal in the subjective
approach is to carry out the “real” bargain of the parties, which may be different than
what they wrote. The benefit, when this approach works correctly, is that the parties
get what they really intended. The downside, of course, is the uncertainty inherent
in proving subjective meaning.
Subjectivity in Action. Note that if both parties agree that the contract’s
language is inaccurate and they agree as to what it should be, no problem exists.
Courts will always enforce an agreed subjective meaning, and the parties are less
likely to have gone to court in the first place. Much more often, however, one party
claims that the deal means exactly what was written, and the other party claims that,
in the context of their deal, the parties meant something else entirely. The question
is not whether the parties’ “real” meaning should control. The question is, rather,
whether we are more likely to find the real meaning in what the parties wrote at the
time, or what they now say they meant.
Since no perfect answer to that question exists and since what two parties
“really” meant is impossible to know with complete certainty—even assuming that
they both meant the same thing 1 —courts and other decisionmakers naturally
struggle with interpretation. Given this landscape, a principal goal of transactional
lawyers is to do their best to remove possible uncertainties and ambiguities from
contracts. Careful drafting can go a long way in avoiding problems. In contrast,
contract litigators, who are typically called to service once the parties are already in
a dispute, will seek either to exploit or to patch over these uncertainties, depending
on their particular client’s position.
The Interpretive Toolbox. When a dispute arises, and a choice of meanings
exists, how does the interpreter of a contract choose the “correct” meaning? We all
make this sort of judgment dozens of times each day, as we interpret the words people
say in light of their context—a handy word encompassing all the surrounding facts
that help give words meaning. If the heroine in the romance novel snarls, “I hate
you!” at the hero with whom she has been adventuring for the last 200 pages, context
may suggest she means something very different from her literal words. We deduce
such things from all the circumstances so often that we scarcely realize we are doing
it.
1 [This assumption is a huge one. The idea that there is some kind of “real” deal between the
parties depends on the premise that they meant the same thing at the outset. We have seen the parties
sometimes have very different ideas about what they agreed to.—Eds.]
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358 CHAPTER VI: TERMS AND INTERPRETATION