− 31 −
The law of certainty of terms, then, reflects this tension
between a requirement that the parties reach a complete and
intelligible agreement and a reluctance to defeat the
expectations of the parties that an enforceable agreement has
been created.... As we shall see, the leading modern
authorities tend to place particular emphasis on the need to
give effect, where possible, to the expectations of the parties
that they have entered into a valid and enforceable agreement.
[Emphasis in original]
[116]
Almost half-a-century earlier, in Marquest Industries Ltd. v Willows
Poultry Farms Ltd. (1968), 1 DLR (3d) 513 (BCCA) the British Columbia Court of
Appeal at pp. 517-18 advocated for a similar interpretive role for a reviewing court as
follows:
In the first place, consideration must be given to the duty of a Court
and the rules it should apply, where a claim is made that a portion of
a commercial agreement between two contracting parties is void for
uncertainty or, to put it another way, is meaningless. The primary rule
of construction has been expressed by the maxim, ut res magis valeat
quam pereat or as paraphrased in English, “a deed shall never be void
where the words may be applied to any extent to make it good”. The
maxim has been basic to such authoritative decisions as Scammell v.
Ouston, [1941] 1 All E.R. 14; Wells v. Blain, [1927] 1 D.L.R. 687,
[1927] 1 W.W.R. 223; Ottawa Electric Co. v. St. Jacques (1902), 31
S.C.R. 636, as well as many others, which establish that every effort
should be made by a Court to find a meaning, looking at substance
and not mere form, and that difficulties in interpretation do not
make a clause bad as not being capable of interpretation, so long
as a definite meaning can properly be extracted. In other words,
every clause in a contract must, if possible, be given effect to. Also, as
stated as early as 1868 in Gwyn v. Neath Canal Navigation Co. (1868),
L.R. 3 Ex. 209, that if the real intentions of the parties can be
collected from the language within the four corners of the
instrument, the Court must give effect to such intentions by
supplying anything necessarily to be inferred and rejecting
whatever is repugnant to such real intentions so ascertained.
[Emphasis added]
[117]
These are the legal principles I will employ when addressing the
Mossings’ arguments that the Third Offer is invalid and unenforceable.