Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co and In re Soper's Estate claim that plain meaning in contract law is impossible. This claim is left irrefuted in the casebooks and contract law literature, Part I notes, and in most teaching of contract law. The consequence is that students are taught that plain meaning is impossible. A startling implication of this conclusion, as Part I explains, is that the majority of U.S. courts, which hold to the plain meaning rule, are relying on a fiction. But the claim that plain meaning is impossible is false, as are its premises. Part II explains why. Drawing on the philosophy of Ludwig Wittgenstein, Part I.A shows why the meaning of words cannot be the thoughts and intentions of the speaker, hearer, or anyone else. Part II.B demonstrates that plain meaning does not require that words have "inherent meaning" or "absolute and constant referents." Plain meaning is possible and occurs quite apart from reference or another theory of inherent meaning. Plain meaning rests instead on our unreflective, public, conventional practice of language use. Most meaning is plain. Part III explains that, though plain meaning is immune from attack on grounds of impossibility, whether the plain meaning rule is the best legal rule is another matter. Actually, all of the legal rules currently available for determining the meaning of contractual language are possible. Which rule one chooses is not a matter of possibility at all, or of language philosophy, but of legal reasoning and social policy.
Val D. Ricks,
Possibility of Plain Meaning: Wittgenstein and the Contract Precedents,
56 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol56/iss4/3