should resolve the ambiguity in favor of the literal meaning. But this misunderstands literalism. It holds that a literal meaning is the only meaning, an unambiguous meaning. Moreover, literalism is not the prevailing law. The court will resolve an ambiguity against a proposed literal meaning if such a meaning leads to unreasonable, senseless, or absurd results,22 or when the context clearly indicates that the parties intended a different meaning.23 In these situations, the case need not go to the jury because the non-literal meaning is the only reasonable meaning.

As one court put it in a government contract case,

[e]xaggerating to explain our point, we find the Government’s [literal] interpretation a little like that of, say, a park keeper who tells people that the sign “No Animals in the Park” applies literally and comprehensively, not only to pets, but also to toy animals, insects, and even chicken sandwiches.24

Some context always is crucial to meaning.25

§ 5.1.3. Objectivism, Judge, and Jury

Under objectivism, the conventions of language use in the context in which the parties made their contract constitute the meaning of a contract’s terms. Consequently, a court or jury may consider a limited context when resolving an ambiguity, not including the parties’ course of dealing, the contract’s negotiating history, the parties’ testimony about their past intentions in court, or other elements bearing only on their subjective intentions. The interpreter, of course, should have before him or her the whole contract document. It would be silly to consider the parol context without the text. The interpreter, whether judge or jury, aims to use the objective context to give an apt meaning to the text in line with the parties’ manifested intentions, understood as a reasonable person familiar with the objective circumstances would understand them.26 In some cases, a party need not prove an ordinary usage by extrinsic evidence because a court may take judicial notice of it.27 The range of admissible parol contextual

22Beanstalk Group, Inc. v. AM General Corp., 283 F.3d 856, 862 (7th Cir. 2002).

23Bank of the West v. Superior Court, 833 P.2d 545, 552 (Cal. 1992).

24United States v. Data Translation, Inc., 984 F.2d 1256, 1261 (1st Cir. 1992).

25See § 2.1.3.

26E.g., Wulf v. Quantum Chem. Corp., 26 F.3d 1368, 1366–67 (6th Cir. 1994).

27RESTATEMENT (SECOND) OF CONTRACTS § 212, cmt. d (1981).

evidence includes the objective circumstances under which the contract was formed and the parties’ practical construction, if any.

§ 5.1.4. Subjectivism, Judge, and Jury

Under subjectivism, by contrast, the parties’ shared mental intentions, or one party’s mental intention if the other party knew or should have known of that intention, constitute the meaning of the contract’s language.28 Consequently, the range of admissible extrinsic evidence expands to include all evidence bearing on what the parties had in mind when they made their contract. Under subjectivism, too, the judge or jury aims to give meaning to the text, not to find independent mental intentions.29 Subjective meaning does not depend on what a reasonable person would understand from the words according to the relevant conventions of language use. Nonetheless, in all but a very few jurisdictions, the language must be reasonably susceptible to the parties’ meaning.30

In addition, the subjectivist interpreter may consider the course of negotiations preceding formation, statements of intention made during negotiations, and a party’s testimony in court about its own past intentions. All of these elements involve questions of fact. There will be no genuine issue of material fact, or no reasonable jury could come to any conclusion but one, when the contract language turns out to be reasonably susceptible to only one party’s meaning. Then, the question of meaning again is a question of law.

§ 5.1.5. Jury Instructions

In general, courts do not give helpful instructions to the jury. Some appellate courts, for example, hold that a trial court need not instruct the jury on the locus of the ambiguity in the contract document.31 Yet the jury’s job is to resolve exactly that ambiguity. Furthermore, many courts merely recite some of the rules of contract interpretation or factors to be taken

28Id. at § 201.

29Fort Lyon Canal Co. v. High Plains A & M, LLC, 167 P.3d 726, 728–29 (Colo. 2007);

RESTATEMENT (SECOND) OF CONTRACTS § 212, cmt. d (1981).

30Pacific Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co., 69 Cal.Rptr. 561, 564 (Cal. 1968).

31Bohler-Uddeholm America, Inc. v. Ellwood Group, Inc., 247 F.3d 79, 102 (3d Cir. 2001).