In our age of consumer arbitration—in which many consumer form contracts declare that contractual disputes must take place in arbitral fora—we can lose sight of what the alternative civil process would really look like. In honor of the occasion to celebrate the contracts scholarship of Bill Whitford, we consider how a jury might be instructed in the interpretation of standard form contracts in a civil judicial proceeding. Whitford’s work has independently looked at “the role of the jury (and the fact/law distinction) in the interpretation of written contracts” and standardized terms in consumer contracts. We thought we would pursue the question of how a jury might be involved in the interpretation of consumer form contracts, focusing especially on how the maxim of contra proferetem figures into the story of interpretation. Contra proferentem usually requires that an interpreter read an ambiguous contract provision against the drafter of that provision. Although contra proferentem would seem to have especial application to the world of standard form contracting in the consumer context—serving to help consumers as a general matter—little work exists explaining and exploring how contra proferentem actually functions. Contra proferentem is a “first principle of insurance law,” but its continuing relevance in more general contract law is presumed rather than carefully examined.
Here are some questions we pursued: Are courts using contra proferentem against drafting entities (when the cases aren’t arbitrated)? Are they limiting its application to the standard form contracting context? Do courts use it to avoid bringing juries into interpretation, since, conventionally, contra proferetem is only triggered upon a legal finding of ambiguity? Yet, as a matter of black-letter law, aren’t juries supposed to determine the meaning of contracts when terms are ambiguous? Is contra proferentem then a rule for guiding the jury’s interpretation, allowing it to decide what an ambiguous contract provision means? Is it only to be used as a tiebreaker or a rule of “last resort”? Before or after other extrinsic evidence is brought to bear to discern the meaning of an ambiguous word? If it is truly only a “tiebreaker,” are juries given the instruction only after they are otherwise deadlocked?