My new paper with Tal Kastner (Rutgers) is now available on SSRN. It is entitled “Recitals and Contract Interpretation” and is forthcoming in FSU Law Review. The abstract follows:
Despite longstanding interest in the interplay between text and context in contract interpretation among courts and commentators, recitals—the “whereas” clauses or prefatory provisions at the start of a contract, which operate at the edge of the document’s “four corners”—have yet to be given much scholarly attention, let alone theorized. This paper interrogates the rationale for and challenges the traditional rule that contract recitals lack interpretive weight unless ambiguity exists in the “operative” contract provisions. Drawing on caselaw, contract theory, and relevant developments in statutory interpretation, it argues that courts should reverse the default rule that marginalizes recitals and presumptively dismisses them as “non-operative.” Instead, courts should consider the entire document—including preambles and recitals—as part of the interpretive baseline from the outset without looking for ambiguity in operative provisions first. This proposed shift, rooted in canons that direct courts to consider the contract as a whole, suits both formalist and contextualist jurisdictions. Ultimately, this paper offers a framework for understanding recitals as meaningful textual cues that illuminate contractual purpose, promote interpretive coherence, and enhance party autonomy. By harmonizing recitals’ status in contracts with the more coherent interpretive treatment of enacted preambles and purposes in statutes, courts can best achieve the dominant goal of contract doctrine: effectuating the intention of the parties as manifested in their agreements.