《装卸时间与滞期费》的基本原则-连载（七）

《装卸时间与滞期费》第6版

General Principles 基本原则

The construction of laytime clauses

装卸货时间条款的合约解释

1.43 On the other hand in a number of cases in the House of Lords, Lord Hoffmann put it slightly differently, perhaps slightly wider. In Investors Compensation Scheme v. West Bromwich Building Society,  Lord Hoffman said: 

(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. 

(2) The background was famously referred to by Lord Wilberforce [in Prenn v. Simmonds [1971] 1 WLR 1381] as the “matrix of fact”, but this phrase is, if anything, an understated description of what the background may include: Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man. 

(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them. 

(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax; (see Mannai Investment Co Ltd v. Eagle Star Life Assurance [1997] 2 WLR 945). 

1.43另一方面，在很多上议院案件中，Hoffmann勋爵处理得稍有不同，也许略宽。在Investors Compensation Scheme v. West Bromwich Building Society案，Hoffmann勋爵说：

(1) 解释合约就是确认文件所能够传递给一个具有所有背景知识的合理人士的意思，该背景知识对处于合同签订当时背景之下的当事双方来说是合理存在并可以获得的。

(2) 背景，依据Wilberforce勋爵[在Prenn v. Simmonds [1971] 1 WLR 1381] [ 1971] 1 WLR 1381 案中]很著名地指出的，是‘订约的事实语境’，但这一短语，如果还有其他表述的话，对背景所可能包含的内容还没有能够进行充分地描述：取决于当事双方本应该能够合理获得的和适应于下文提到的（除外事项这一条件要求的规定），它还绝对包括任何其他事项，可能影响到文档的措辞被一个合理的人士能够理解的方式。

(3)从可接受的背景中，法律排除双方当事人先前的谈判证据和他们主观意图的声明。它们只有在合同变更行动之后才可以是被承认的。法律对此做出区分的原因是为了实际操作所需，而且，只有在这方面，法律的解释才是区别于我们在日常生活中对平常讲话的解释。这种除外事项的界限在某些方面还是不太清楚。但是，在此，不是对他们进行探讨的场合。

(4)一份文件(或任何其他言论)能够传递给一个合理的人士的意思与所用词语的意思是有所不同。词语的含义是字典和语法的问题；而一份文件的意思是，双方当事人在当时相关背景下所采用的这些词语，并且能够被合理地理解其所指的含义。订约背景不仅仅能够促使合理的人士在模糊不清的词语中选择最有可能的意思，而且，甚至（如同在日常生活中偶尔发生的那样）得出结论，双方当事人一定是使用了错误的词语或句法，无论什么原因。(参看Mannai Investment Co Ltd v. Eagle Star Life Assurance [1997] 2 WLR 945).

1.44 To understand to what Lord Hoffmann was referring in the last sentence of paragraph (4) in the passage from his speech quoted above, it is necessary to look at the case to which he referred at the end of the sentence. 

1.44要了解上述引用的Hoffmann勋爵的讲话在第4段最后一句所指的含义，这必须去查看在最后一句他所指的案例。

1.45 The Mannai Investment case was a landlord and tenant case where the House of Lords held by a majority (which included Lord Hoffmann), that the Court of Appeal were wrong in holding that a notice, served by a tenant, was ineffective and of no effect because the notice served by the tenant purported to determine a lease on 12 January 1995 when it should have specified 13 January 1995, that being the third anniversary of the lease, the date on which, as both parties would have been aware from the terms of the lease, such notice was to expire. 

1.45案例Mannai Investment是业主与租户之间的案件，上议院的大多数(其中包括Hoffmann勋爵)裁决上诉法院在租户送达的通知是无效的和没有结果的这一判决是错误的，因为由租户送达的通知声称在1995年1月12日去终止租契其本应该指定是在1995年1月13日，即租契的第3周年，这一日子，因是从租契条文中，双方都本应该能够意识到，因此(上诉法院判决)该通知是过期失效的。

1.46 Earlier, the Court of Appeal basing themselves on an earlier decision of that court in Hankey v. Clavering  and earlier authorities to the same effect, had held that in respect of clauses in leases, such as notices under a break clause, options to purchase and notices to quit, the notice given must be in precisely the terms required by the lease in question. In the House of Lords, the majority view was that that decision should be overruled so as to provide that, where it was clear that the giver of the notice intended to comply with the provisions of the clause, he should be held to have done so despite stating an erroneous date on which the notice was to take effect. 

1.46先前，上诉法院是基于在Hankey v. Clavering案中法院早期的判决和具有同样效果的早期判例，就有关租契中的条款，例如依据中断条款的通知，给予购买方以选择权和退出的通知，判决所给予的通知按照该租契的要求必须是精确的术语。在上议院，大多数的观点是上诉法院这一判决应被推翻，以便规定，如果很明显，通知的给予者打算遵守这一条款的规定，尽管表达了通知生效的错误日期，他也应该被判决已经这样做了通知。

1.47 In his speech, Lord Hoffmann gave a number of examples in everyday speech where people have conveyed their meaning unambiguously although they have used the wrong words. Having referred to malapropisms, where his lordship suggested the intended meaning was clear despite inappropriate words being used, he then referred to situations where people have made mistakes about names or descriptions, or days or times, such as someone asking “And how is Mary”, when both parties to the conversation knew that the speaker meant Jane. Even if the obvious mistake is not referred to by the recipient, both sides know the message has been unambiguously received and understood.

1.47在他的判决发言中，Hoffmann勋爵给出很多的例子，在日常讲话中，尽管人们使用错误的词语，却已经明确无误地传达了他们的意思。在提到词语误用的情况，尽管使用不恰当的词语，他以其上议院大法官身份建议本意还是明确的，然后他提到人们在有关名字，或描述，或日期或时间上所犯的错误情景，例如有人会问：‘那玛丽怎么样’，正在交谈的双方知道讲话者意指‘简’。即使接受者没有提及这一明显的错误，双方都知道这种信息已经被明确无误地接收和理解。

1.48 Another example given by Lord Hoffmann was of two people having arranged to attend a concert together on a particular date, one of them then says to the other that he will see him on a particular date, but gives the wrong date.

1.48 Hoffmann勋爵给出另一个例子是，两个人已经安排在某特定日期一同参加一场音乐会，后来其中一人对另一个人说他在该特定的日期与之见面，但却给予了错误的日期。

1.49 In appropriate circumstances, the courts are therefore now more willing, if necessary, to rearrange the words used by the parties or even use different words to ascertain the underlying intention of the parties in a way that makes commercial sense, rather than simply take them at face value. However, the judges have also added a note of caution.

1.49在适当的情况下，现在如果有必要，法院因而会更愿意重新安排当事双方所使用的词语，甚至使用不同的词语来确定当事人的根本用意以此方式使之具有商业意义，而不是简单地以字面意思看待它们。不过，法官也还需增加小心注意。