The project is based on three different groups of questions.
1) First group: The modern foundations of the contract’s interpretation.
The traditional doctrine of interpretation is based on the will of the parties and takes as its paradigm bilateral contracts of instantaneous execution. The reality is, however, much more complex and multifaceted. The increase in automatic and mass contracts in modern societies, many of them created by AI, the phenomenon of contracts born and concluded on digital platforms, and the existence of a significant intervention of third parties in the formation of the contract, for example, pose new questions to legal science: what is the basis of the vinculum? Is voluntas as determinant in the interpretative process as it was in the past? Does interpretation seek to discover the real will of the parties or is its scope rather associated with the protection of confidence and the sharing of risk? The criteria of interpretation set out in the Civil Code do not provide satisfactory answers to these questions: how should we deal with it? What are the practices observed in other jurisdictions historically linked to the Portuguese system (Germany, France and Italy, for example)? Is it possible to conceive a single method of interpretation or should we assume a methodological plurality, concerning the interpretation of normative texts?
2) Second group: Contractual rules of interpretation
It is very common, especially in international contracts, for the parties to provide for various clauses on the interpretation of the contract itself. How should clauses dealing precisely with interpretation be interpreted? Are such clauses valid under Portuguese law? What are the limits of private autonomy in this area?
3) Third group: Interpretation of the will of legal persons.
A very significant part of the legal transactions concluded in any jurisdiction has legal persons as parties, in particular, commercial companies. The knowledge and will of legal persons raise particularly difficult questions. If legal persons have no psychological or biological support, how can we establish a normative way of knowing something or wanting something? These questions are not new, but the impact of these issues on the formation and interpretation of contracts has not yet been studied. Should we apply the same hermeneutic criteria that we apply to the interpretation of contracts concluded between natural persons when legal persons are involved? If the answer is negative, which interpretation criteria should be observed? And which is the relevant jurisdiction: the law governing the contract or the personal law of the legal person concerned?
Principal Investigator
Researchers
- Max-Planck-Institute (Hamburg), IEC
The research project will be implemented in two stages:
- 1st stage (from January 2025 to December 2026)
Each researcher should choose three topics from the three problem groups identified above and start working on a paper for a collective publication.
The work in progress will be discussed at periodic team meetings (always open to all researchers who wish to participate) and improved with everyone's contributions.
During this period, two international conferences will be organized:
- 1st International Conference: The Fundamentals of contract interpretation (November 2025). Several foreign speakers from other CIDP partner research centres will be invited. CIDP researchers will be invited to address specific topics relating to the first group of issues mentioned above.
- 2nd International Conference: The interpretation of contracts in international arbitration (November 2026). Several foreign speakers will also be invited and CIDP researchers will be invited to address the results of their research, with particular reference to the topics that make up the second and third group of issues mentioned above.
- 2nd stage (from January 2027 to December 2027)
Preparation of a collective work that collects the work done by all the researchers, publication in English and international dissemination of the work.