A CRITICAL LOOK AT THE SUBJECTIVE AND OBJECTIVE PURPOSES OF CONTRACT IN AHARON BARAK’S THEORY OF INTERPRETATION

Abstract

Sometimes parties to a contract agree on the wording of the contract, but disagree about its meaning. In such cases, the goal of purposive interpretation is to identify a legal meaning, within the limits of the language actually used, which best achieves the purpose of the contract in question. This paper presents the main features of Justice Aharon Barak’s theory of purposive interpretation of contracts, and examines his notions of subjective and objective purposes. Barak’s theory demands, at some point along the process of interpretation, that the judge determine the actual joint intent of the parties, as it was at the time of their entering into the contract, and in the situation where the parties themselves disagree over it. This requires a posterior inquiry into the true state of mind of other persons. The past intentions of others are regarded as historical-subjective psycho-biological facts. The author questions what goes on behind this subjective rhetoric, starting from the presumption that the inner reality of another person’s will, i.e. their past or present intentions, cannot be learned as a physical reality, but only as a socially constructed fact. Furthermore, the author examines the seemingly unwanted merging of Barak’s subjective purpose of contract with his objective purposes of contract at the lower levels of abstraction.