Should the court consider subsequent conduct of the parties when construing an oral contract?
The Court of Appeal analysed the rationale of the well established rule in the Miller case. The rationale was that the parties had made a complete record of their agreement at the time, in writing. The written words had to be objectively construed or interpreted. Such construction was a matter of law. It was therefore irrelevant to call evidence of how one party behaved after the event. That only shed light on what that party subjectively thought he had agreed. In contrast, in relation to contracts which were wholly or partly oral the Court of Appeal stated: • The only way a court could determine the terms of a contract which was wholly or partly oral was by hearing evidence about it at the trial (some years later). In the present case, the accuracy of the parties’ recollections was disputed. As a matter of principle, it was highly relevant to hear evidence of what the parties had said and done about the disputed matters for the purpose of testing the accuracy of their recollections. •
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