Law’s “Way Of Words”: Pragmatics And Textualist Error

Abstract

INTRODUCTION|"[T]here is often a divergence between what a person says and what she means, between the meaning of the linguistic expression she uses and the meaning she seeks to communicate by using it." -Robyn Carston "Meaning is inevitably dependent on context." -Restatement (Second) of Contracts "Pure applesauce." -Justice Scalia|Two priests fluent in English and Latin live in a jurisdiction where wild horses may be legally seized and sold. The first priest emails the second priest: "If you seize the wild horse known as Sind,hold him for me, and send me notice that you have him, I'll pay you $1000.00." The second priest promptly seizes Sind, promptly puts him in a holding pen for the first priest, and promptly emails the first priest: "Peccavi," which is gibberish in English but means "I have sinned" in Latin. Does the first priest now owe the second priest $1000.00? Neither an English nor a Latin dictionary provides the answer. Instead, we would look for the answer in how we use (and even make sport of) language. Is the answer meant as a phonetic equivalent (after translation) of "I have Sind"? If so, does that count as meeting the notice requirement? Is it perhaps an even richer answer of "I have sinned and have Sind"? Each of these possibilities shows us that speaker meaning can differ from linguistic meaning. Since such divergence can occur, text alone is not going to give us any kind of real-world answer to our contract question here...