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NeCede's

Maxim 11.1.29

There is no surer way to find out what parties meant, than to see what they have done.

Source: Brooklyn Ins. Co. v. Dutcher, 5 Otto (95 U.S.) 269, 273; Weisman, 2z Difficulty 3/5 — Intermediate

Explanation

(English-origin maxim.) The practical construction placed on an agreement by the parties' own conduct is the best evidence of their mutual intent — actions speak louder than recitals.

Where this applies

  • Two neighbors dispute the boundary of their property, but for forty years both have treated the old fence line as the border — their conduct is the best evidence of what they agreed the boundary was.
  • A contract's payment terms are ambiguous, but for ten years the buyer has paid quarterly and the seller has accepted without complaint — their course of dealing shows what they meant.
  • Spouses disagree about whether their prenuptial agreement covers a vacation home, but they've been splitting costs on it equally for a decade — their actions reveal their mutual intent.

Legal domains

Cite this maxim

NeCede Max. 11.1.29 — There is no surer way to find out what parties meant, than to see what they have done. — Brooklyn Ins. Co. v. Dutcher, 5 Otto (95 U.S.) 269, 273; Weisman, 2z

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