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Home > Journals > Michigan Law Review > MLR > Volume 29 > Issue 3 (1931)

 

Abstract

It is submitted that the terms "interpretation" and "construction" and the verbs "interpret" and "construe" should be used with distinct significations. There are two types of problems with reference to which these terms are used, often ambiguously and unclearly. In one type of problem a question is presented and sought to be answered as to what someone actually or apparently intended. There is an effort to reach a result which was actually desired even though the data tending to show this may be of limited utility. In the other type of problem it is recognized or realized either that there are no data which tend to make manifest what was intended or desired or that the data available are inadequate or insufficient to lead with reasonable assurance or reliability to a discovery or disclosure of what was intended or desired, the position being taken that if there were adequate and sufficient data for the purpose, the data would be made use of in order to give effect to the intention or desire manifested. The term "interpretation" seems the better adapted to describe the first type of problem, while the term "construction" seems the better adapted to describe the second type. Distinct from these is a third type of problem respecting language used in documents or instruments, in which the intention or desire of the user of the language is disregarded and the sole inquiry is what legal effect to give, irrespective of any disclosure of intention or desire. It should be observed that problems of construction differ from ordinary problems of mere legal effect only in that with reference to the former kind, inquiry to discover intention or desire would be made were it not considered futile or inconvenient. When such an inquiry is recognized or regarded as useless, however, no reason is apparent why the same conflict of laws rules should not be applied as in dealing with problems in which the sole consideration entertained is the determination of the legal effect to be given to operative facts irrespectively of any intention or desire on the part of the user of the language in question and in which the desideratum of maximum simplicity in the solution of problems certainly would seem to call for employment of the same conflict of laws rules.

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