The Possibility of Plain Meaning: Wittgenstein and the Contract Precedents

Val D. Ricks, South Texas College of Law

Abstract

The fashion in American law schools is to teach that contractual language cannot have a plain meaning. Most of this teaching occurs when students study the “plain meaning rule.” This rule allows a judge, after finding unambiguous language (plain meaning) in a written contract, to refuse to look at other evidence of that language’s meaning.

The rule is heavily criticized, but claims against it have been exaggerated. One of these exaggerated claims is that plain meaning is impossible. This claim is found in the caselaw opinions that students are made to read. It appears most clearly in Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., decided in 1968 by Justice Roger Traynor of the California Supreme Court [PG&E]. Traynor’s opinion appears in nearly every Contracts casebook. Because PG&E’s facts actually do not put the plain meaning rule in issue, that case is often supplemented by another case more on point, such as In re Soper’s Estate (Minnesota 1935).

Both opinions claim that plain meaning is impossible. The claim has two premises. First, the judges assert that plain meaning could only be found by reading a document if words had inherent meaning, or absolute and constant referents. But they do not, the argument goes. Second, the opinions claim that the meaning of words is actually the thoughts and intentions of the speaker, or perhaps the speaker and hearer. No written contract could ever adequately reveal these, which appear at most only in a larger context. Plain meaning is therefore impossible. This claim is left unrefuted in the casebooks and contract law literature. The consequence is that students are taught that plain meaning is impossible. A startling implication of this conclusion is that the majority of U.S. courts, who 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. Drawing on the philosophy of Ludwig Wittgenstein, the article shows why the meaning of words cannot be the thoughts and intentions of the speaker, hearer, or anyone else. The article also 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.

Finally, the article 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.