CANONS OF CONSTRUCTION

CANONS OF CONSTRUCTION

The system of basic rules and maxims applied by a
court to aid in its interpretation of a written doc-
ument, such as a statute or contract.
In the case of a statute, certain canons of
construction can help a court ascertain what the
drafters of the statute—usually Congress or a
state legislature—meant by the language used in
the law. When a dispute involves a contract, a
court will apply other canons of interpretation,
or construction, to help determine what the par-
ties to the agreement intended at the time they
made the contract.
Statutory Construction
When considering a statute, a court will
apply rules of construction only when the lan-
guage contained in the statute is ambiguous.
Under the “plain-meaning” rule, if the intention
of the legislature is “so apparent from the face of
the statute that there can be no question as to its
meaning, there is no need for the court to apply
canons of construction” (Overseas Education
Ass’n v. Federal Labor Relations Authority, 876
F.2d 960 [D.C. Cir. 1989]). Thus, before even
considering what canons to apply, the court
must first determine whether the statute in
question is ambiguous. Courts have generally
held that a statute is ambiguous when reason-
234 CANON LAW SOCIETY OF AMERICA
ably well-informed persons could understand
the language in either of two or more senses
(State ex rel. Neelen v. Lucas, 24 Wis. 2d 262, 128
N.W.2d 425 [1964]).
If a statute is found to be ambiguous, the
court then applies a variety of canons, or rules,
to help it determine the meaning of the statute.
Issues of statutory construction are generally
decided by the judge and not by the jury. In
interpreting statutes, a judge tries to ascertain
the intent of the legislature in enacting the law.
By looking to legislative intent, the court
attempts to carry out the will of the lawmaking
branch of the government. This philosophy has
its origins in the English COMMON LAW first
established over four hundred years ago. As the
legal philosopher SIR EDWARD COKE wrote in
1584, “[T]he office of all judges is always to
make such construction as shall suppress the
mischief, advance the remedy, and to suppress
subtle invention and evasions for CONTINUANCE
of the mischief . . . according to the true intent of
the makers of the act” (Heydon’s Case, 3 Co. Rep.
7a, 76 Eng. Rep. 637 [King’s Bench 1584]). In
more contemporary terms, courts consider the
history and nature of the subject matter of the
statute; the end to be attained by the law; the
“mischief,” or wrong, sought to be remedied;
and the purpose to be accomplished by the law
(Crowder v. First Federal Savings & Loan Ass’n of
Dallas, 567 S.W.2d 550, Tex. App. 1978). In
determining legislative intent courts usually
turn to a variety of sources: the language of the
statute itself; the LEGISLATIVE HISTORY of prior
enactments on a similar subject; the proceedings
surrounding the passage of the law, including
debates and committee reports; and, if they are
available, interpretations of the law by adminis-
trative officials.
To aid in the interpretation of an ambiguous
law, a court may also look to more “intrinsic”
rules not related to the activities preceding the
passage of the statute. These rules are applied to
help the court analyze the internal structure of
the text and the conventional meanings of the
terms used in the law. In addition, intrinsic rules
may be used when the court has little or no
existing legislative history, such as that provided
by committee reports or records of other pro-
ceedings, to draw on in interpreting the statute.
Some of these canons of construction are
expressed in well-known Latin phrases or max-
ims. Under ejusdem generis (of the same kind,
class, or nature), when general words follow spe-
cific words in a statute in which several items
have been enumerated, the general words are
construed to embrace only objects similar in
nature to the objects enumerated by the preced-
ing specific words of the statute. Ejusdem generis
saves the legislature from having to spell out in
advance every contingency to which the statute
could apply. For example, in a statute granting a
department of conservation the authority to sell
“gravel, sand, earth or other material,” a court
held that “other material” could only be inter-
preted to include materials of the same general
type and did not include commercial timber
(Sierra Club v. Kenney, 88 Ill. 2d 110, 57 Ill. Dec.
851, 429 N.E.2d 1214 [1981]). In the opposite
situation, where specific words follow general
ones, ejusdem generis is also applied; again, the
general term embraces only things that are sim-
ilar to those specifically enumerated.
Another MAXIM of statutory construction is
expressio unius est exclusio alterius. Roughly
translated, this phrase means that whatever is
omitted is understood to be excluded. Thus, if a
statute provides for a specific sanction for non-
compliance with the statute, other sanctions are
excluded and cannot be applied (Sprague v.
State, 590 P.2d 410 [Alaska 1979]). The maxim is
based on the rationale that if the legislature had
intended to accommodate a particular remedy
or allowance, it would have done so expressly; if
the legislature did not provide for such an
allowance or event, it should be assumed that it
meant not to. The maxim has wide application
and has been used by courts to interpret consti-
tutions, treaties, wills, and contracts as well as
statutes. Nevertheless, expressio unius est exclusio
alterius does have its limitations. Courts have
held that the maxim should be disregarded in
cases in which an expanded interpretation of a
statute will lead to beneficial results or will serve
the purpose for which the statute was enacted.

Contract Construction
Judges face different challenges when inter-
preting the terms of a contract. As a result, dif-
ferent canons exist to aid a court in resolving a
dispute between the parties to a contract.
As in statutory construction, in a contract
dispute the court gives contract terms their plain
and ordinary meaning, interpreting them as
ordinary, average, or reasonable persons would
understand them (Rains v. Becton, Dickinson &
Co., 246 Neb. 746, 523 N.W.2d 506 [Neb. 1994]).

If the language of the contract is clear and unambiguous, there is no room for further
interpretation and the court will enforce the
contract as written. By doing so, the court gives
effect to the parties’ intentions in making the
contract and avoids adding its own interpretation
to the agreement.
If the contract contains ambiguous terms,
however, they are strictly construed against the
party who drafted the contract. This rule of
STRICT CONSTRUCTION is often applied in contracts
containing exculpatory clauses, or provisions that
attempt to insulate a party, usually the party who
drafted the contract, from liability. Thus, when a
clause in a contract between a health club and a
member, in which the member waived her right
to bring legal action for injuries she suffered at
the health club, was held to be ambiguous, it was
construed strictly against the health club and it
was found to be invalid (Nimis v. St. Paul Turners,
521 N.W.2d 54 [Minn. App. 1994]).
A court may look to other canons of construction
or interpretation if it determines that
the terms of a contract are ambiguous. In business
situations, the court may consider the
course of dealing or COURSE OF PERFORMANCE,
that is, the pattern of conduct observed in previous
transactions between the parties. Such evidence
can help the court determine the intent of
the parties at the time they entered the contract
and provides additional terms that, though they
are not expressly contained in the agreement,
the court can use to interpret the contract. Thus,
where one party to the contract alleges that the
other breached the contract by failing to make
payment in the proper manner, and the contract
contains no express provisions concerning payment,
the court can consider how the parties
handled the issue of payment in previous transactions
to resolve the issue (AROK Construction
Co. v. Indian Construction Services, 174 Ariz. 291,
848 P.2d 870 [Ariz. App. 1993]).
A court can also look to usage of trade to aid
its interpretation of an ambiguous agreement. A
usage of trade is a commercial practice or industry
custom “having such regularity of observance
in a place, vocation, or trade as to justify
an expectation that it will be observed with
respect to a particular agreement” (Restatement
[Second] of Contracts § 222 [1981]). As a result,
if a contract is unclear about how shipment of a
specific type of goods is to be handled, the court
can consider evidence of general industry practice
in the area to help determine what the parties
intended with respect to shipment.

FURTHER READINGS
Ruff, Anne. 1999. Contract Law. London: Sweet and Maxwell.

Spiropoulos, Andrew C. 2001. “Making Laws Moral: A Defense of Substantive Canons of Construction.” Utah Law Review (fall): 915–63.

CROSS-REFERENCES
Course of Dealing; Course of Performance; Exculpate; Strict Construction; Trade Usage.