Without Prejudice Interpretation—With Prejudice Negotiations: Oceanbulk Shipping and Trading SA v TMT Asia Ltd

AuthorAdrian Zuckerman
Date01 July 2011
Publication Date01 July 2011
DOI10.1350/ijep.2011.15.3.379
SubjectCase Note
CASE NOTE
WITHOUT PREJUDICE INTERPRETATION—WITH PREJUDICE NEGOTIATIONS
CASE NOTE
Without prejudice interpretation—
with prejudice negotiations:
Oceanbulk Shipping and Trading SA
vTMT Asia Ltd
By Adrian Zuckerman*
Professor of Civil Procedure at Oxford University
Keywords Without prejudice negotiations; Settlement; Admissibility; Interpre-
tation of settlement agreement
or a long time the law of contract has grappled, not altogether success-
fully, with the tension between intention and meaning. Contracts are
voluntarily undertaken obligations. Therefore, a person is contractually
bound only by those obligations he intended to assume and none other. But how
do we know what a person intends? We cannot see into the minds of others. We
cannot therefore know what others intend to promise except by what they say.
But, as the Latin proverb goes, verba volant scripta manent (words fly away, writings
remain). To avoid the ephemeral nature of the spoken word, the uncertainty of
oral communications, people write down their agreements so that their rights
and duties would be governed by the written word. The written word encapsulates
what was intended. And this is due not to a special legal principle but to the fact
that both parties intended to be bound by the written agreement. For why else
would they have taken the trouble of recording their agreement in writing?
Since, as a matter of fact, a written contract is intended to be the source of the
parties’ rights and obligations, there is a rule of law that renders it impermissible
doi:10.1350/ijep.2011.15.3.379
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2011) 15 E&P 232–244 232
F
* Email: adrian.zuckerman@law.ox.ac.uk. The author is grateful to Dr Dori Kimel of New College,
Oxford for critical comments.

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