Joshua Stein (I mentioned him today’s other post) recently asked me about an instance of contract ambiguity. Here’s how he referred to it in a recent email:
Here’s an example of the usage I commented on: “If Member A fails to contribute the entire Mandatory Capital Contribution, then Member B shall have the following rights and remedies.” What happens if the Mandatory Capital Contribution was $100, and Member A contributes only $50? Has Member A failed to contribute the entire Mandatory Capital Contribution? He didn’t entirely fail! He partly succeeded.
What we have here is a form of “part versus the whole” ambiguity. Chapter 11 of MSCD is devoted to that particularly fiendish kind of ambiguity, and what 11.86 has to say is relevant to Joshua’s example. It says, “Every, each, and any are also ambiguous in the context of a sentence expressing failure or inability.” If offers the following example, with its two alternative meanings:
- “Disability” means the Employee’s inability to perform [every] [each] [any] duty under this agreement.
- “Disability” means the Employee’s ability to perform no duties under this agreement.
- “Disability” means the Employee’s inability to perform one or more duties under this agreement.
Joshua’s example reflect the same issue: does the failure refer only to the whole or can it refer to part of the whole?
As regarding eliminating the ambiguity, here’s what Joshua said:
I usually try to rewrite this kind of thing, e.g.: “If, as of the Deadline, all or any part of the Mandatory Capital Contribution remains unfunded, then Member B shall have these rights and remedies.”
Assuming that it wouldn’t make sense to allow Member A to get away with contributing less than all of the Mandatory Capital Contribution, I might be inclined to say “If Member A contributes less than the Mandatory Capital Contribution ….”
I expect that Joshua’s example will find its way into MSCD4.