“interpreted wherever reasonable as treating alike all those similarly situated, without regard to their knowledge or understanding of the standard terms of the writing.”83 This provision adopts the objective standard and therefore excludes the course of negotiations in a particular case except with respect to non-standard terms.

§ 2.3.3. A Party’s Testimony as to Its Intention

Many courts, taking a subjective approach for the purpose of resolving ambiguities, allow a party to testify in court as to its own intent when negotiating or signing the contract in question.84 Obviously, such testimony may be self-serving, or otherwise false due to a faulty memory or fear of the consequences of testifying honestly, as in the case of a continuing corporate employee. Courts that allow a party’s testimony probably believe that the fact-finder, usually a jury, is sufficiently capable of detecting and discounting unreliable testimony about past intentions. Others seriously doubt that this is so and exclude such testimony.85 The latter courts may believe that detection is too difficult, especially when a party has convinced itself of the truth of its false testimony. These doubts do not apply when a party testifies against its interest.86 No illustration is needed on this obvious element.

§ 2.3.4. Subjective Circumstances

Subjectivist interpreters take into account circumstances bearing only on the parties’ subjective intentions, though not to the exclusion of the

83RESTATEMENT (SECOND) OF CONTRACTS § 211(2) (1981).

84E.g., Flying J Inc. v. Comdata Network, Inc., 405 F.3d 821, 834 (10th Cir. 2005); American Bank of Commerce v. M & G Builders, Ltd., 586 P.2d 1079, 1082 (N.M. 1978); Public Service Co. of Okla. v. Home Builders Ass’n of Realtors, Inc., 554 P.2d 1181, 1185 (Okl. 1976); Int’l Ass’n Machinists and Aerospace Workers Lodge No. 1194 v. Sargent Industries, 522 F.2d 280, 283–84 (6th Cir. 1975).

85Coliseum Towers Assocs., 769 N.Y.S.2d at 29. See also Posner, supra note 2, at 1593–95; Joseph M. Perillo, The Origins of the Objective Theory of Contract Formation and Interpretation, 69 FORDHAM L. REV. 427, passim (2000).

86See Metropolitan Area Transit, Inc. v. Nicholson, 463 F.3d 1256, 1260 (Fed. Cir. 2006); Stroud, 641 S.E.2d at 146.