Part V Construction and Practice, 28 Evidence and Practice

Subject(s):

Breach of contract — Construction of contract — Interpretation of contract — Performance of contract — Types of contract or document and damages

This chapter describes the modern law on what is meant by ‘in writing’, a ‘document’, a ‘copy’, and a ‘signature’. Traditionally a party was usually required to prove a document by production of the original, together with the evidence of any witnesses. Such formalism is now a matter of history, as a broad and permissive approach is taken to documentary evidence in modern civil proceedings. The law of evidence had grown up in the context of a division of labour between the judge and the jury in both civil and criminal trials. By the eighteenth century a series of exclusionary rules developed to keep certain matters from the jury. These exclusions were in some accounts united by an underlying principle insisting on the ‘best evidence’ available. The chapter explores the rise of this best evidence rule and turns to the procedures for determining issues of construction.