It’s a bad idea to draft a provision so that its meaning changes significantly when you remove a comma. For one thing, commas have a way of disappearing in the course of revisions. And if a party is disgruntled enough, it might not be inclined to let a pesky little comma block its march to [...]
[Updated 12:05 p.m. EST Feb. 24, 2010]
Three variations on a closing theme:
Does “Closing” Refer to a Process or a Moment in Time?
Does closing mean the moment a transaction is consummated? Or does it refer to the process leading up to that moment, with contracts being finalized and signed, opinions being issued, and funds being sent [...]
One of the chapters of MSCD that I sweated most over was chapter 10, “Ambiguity of the Part Versus the Whole.” Here’s the first paragraph:
Use of plural nouns and the words and, or, every, each, and any can result in ambiguity. In each case, the question is whether it is a single member of a [...]
Via Twitter, I came across a blog post entitled “Effective Contract Drafting: A Subversive Manifesto.” It’s by William Carleton, partner at a Seattle law firm.
It begins as follows:
It’s always best to say what you mean as clearly and as simply as you can, right?
Maybe.
…
Ambiguity, however, is indispensable to the drafter of commercial contracts.
At this point [...]
I learned from this post on Language Log that use of commas in a provision of the Bankruptcy Code has become an issue in the bankcruptcy case of the Philadelphia News. Being a veteran of comma-related strife myself, I have a soft spot for such matters.
But prevailing in any comma dispute comes a distant second-best [...]
The ever-alert Steven Sholk has informed me of another legal opinion discussing syntactic ambiguity. This one was issued by the Tenth Circuit Court of Appeals and addresses how much of a provision in an insurance policy was modified by a closing modifier. (Click here for a copy of the opinion.)
I’m not particularly interested in what [...]
One of my afflictions is paranoia regarding and and or. (You may recall my deconstruction of a Toronto restroom notice.)
Consider the following:
If a proceeding seeks to compel the Recipient or any of its Representatives to disclose any Confidential Information …
I’m wondering whether one could improve on that formulation—given that or can be inclusive or exclusive, [...]
No one has ever mentioned to me MSCD chapter 13 (Numbers and Formulas) or asked me any questions about it, so evidently the subject isn’t high on anyone’s list of concerns. But I have a soft spot for that chapter anyway—it discusses the fiendishly subtle forms of ambiguity that can arise in expressing formulas in [...]
The case of Citgo Petroleum Corp. v. Ranger Enters., 2009 U.S. Dist. LEXIS 58676 (Conn. Mar. 17, 2009), revolved around whether, as used in the context of a separation agreement, the word salary included bonuses. A careful drafter would want to avoid any confusion on that score.
By the way, I don’t intend to devote a [...]
In Comtide Holdings, LLC v. Booth Creek Mgmt. Corp., 2009 U.S. App. LEXIS 15086 (6th Cir. July 2, 2009), the following provision was at issue:
CLOSING. Broker shall receive reasonable notice of closing. The BROKER’s fee referred to in Paragraph 4 above is payable in full to the BROKER only upon closing of the escrow/settlement account [...]
Recently I wanted to find out more about use of expert testimony to resolve contract ambiguity. (Remember, ambiguity arises when a contract provision is capable of expressing two or more inconsistent meanings.) So I consulted Walter R. Lancaster & Damian D. Capozzola, Expert Witnesses in Civil Trials. I learned that “it remains a basis for [...]
Reader Patrick Grant told me about a ConstructionRisk.com newsletter describing a Texas case involving syntactic ambiguity. (Syntactic ambiguity derives from uncertainty over which part of a sentence a given word or phrase modifies.)
The case in question was Consolidated Reinforcement v. Carothers Executive Homes, 271 S.W.3d 887 (Tex. App. 2008), a case before the Texas Court [...]
While in Toronto last week I couldn’t help but admire, from the standpoint of graphic design and engaged municipal government, the timely yellow-and-white notice about handwashing that was posted in all restrooms.
But those who attend my seminars will be aware that the one subject that has had me in a cold sweat more than any other is [...]
Jones v. Francis Drilling Fluids, 2009 U.S. Dist. LEXIS 21388 (Mar. 17, 2008 S.D. Tex.), concerns a worker injured while working on a floating drill barge rig located in inland waters. He had been working for Francis Drilling, which had been working as a contractor for ADTI under a master services agreement (MSA). And ADTI [...]
This post isn’t intended for drafters so much as judges and litigators.
In a recent bankruptcy case, In re IdleAire Technologies Corp., 2009 Bankr. LEXIS 343 (Bankr. D. Del. Feb. 18, 2009), the court had the following to say about “latent ambiguity”:
The plain language of an insurance policy, however, can also be ambiguous, even when there [...]
Reader Kazu brought to my attention the following language from the recently enacted Lilly Ledbetter Fair Pay Act (emphasis added):
For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject [...]
Here’s a case of modest interest to you fans of and and or: County of Du Page v. Ill. Labor Rels. Bd., No. 105395, 2008 Ill. LEXIS 1835 (Ill. Dec. 18, 2008). It involves statutory construction, but the principles at issue apply equally to contracts.
The Illinois Labor Relations Board certified a chapter of the Metropolitan [...]
While at LegalTech on Tuesday, I picked up a free copy of the New York Law Journal, just for the sheer novelty of reading it in newsprint.
One item that caught my eye was an account of WebMD LLC v. RDA International Inc., No. 102830/08, 2009 WL 175036 (N.Y. Sup. Ct. Jan. 6, 2009). (Click here [...]
In this December 2007 post I wrote about the Delaware Chancery Court opinion in the litigation between United Rentals Inc. and two Cerberus Partners acquisition vehicles. But I wasn’t so much interested in the opinion as in what had caused the confusion and how it could have been avoided, so I didn’t even mention the [...]
Reader Matthew pointed out to me an ambiguity I hadn’t thought of.
Here’s the language at issue:
If the Escrow Agent receives from the Seller a Counter Notice before 2:00 p.m. on the date that is 20 Business Days after the Escrow Agent received the corresponding Claim Notice, the Claim must be resolved in accordance with section [...]
Reader Steven Sholk of the Gibbons law firm alerted me to the February 6 decision by the Mississippi Supreme Court in Barbour v. Mississippi ex rel. Hood. Click here for a copy of the opinion. Steven had been alerted to this case by Rick Hasen of the Election Law blog.
This case involves a squabble between [...]
“The part versus the whole” is the term I use to refer to ambiguity regarding whether a single member of a group of two or more is being referred to, or the entire group.
Along with materiality, it’s the most complex topic I’ve written about. That helps explain how the literature on drafting has so thoroughly [...]
You should avoid using in your contracts the word willful (alternative spelling wilful), as it’s ambiguous.
This lesson comes courtesy of Judge Gerard E. Lynch of the Southern District of New York, in his opinion in Johnson & Johnson v. Guidant Corp., 2007 U.S. Dist. LEXIS 64114 (S.D.N.Y. Aug. 29, 2007). (Click here for a copy [...]
My email in-box is overflowing with emails from Lexis notifying me of cases ostensibly relating to ambiguity. I fished from the torrent the following straightforward example of syntactic ambiguity. (Syntactic ambiguity arises out of the order in which words appear and how they relate to each other.) It’s from Active Zones of America, LLC v. [...]
A recent Illinois case, Regency Commercial Assocs., LLC v. Lopax, Inc., 2007 Ill. App. LEXIS 476 (Ill. App. Ct. May 4, 2007), provides a great example of how syntactic ambiguity can really make a mess of a contractual relationship. (Click here for a copy of this case.)
The predecessor of the plaintiff Regency sold to the [...]
In Provident Bank v. Tenn. Farmers Mut. Ins. Co., 2007 U.S. App. LEXIS 10671 (6th Cir. May 2, 2007), the Court of Appeals for the Sixth Circuit considered the meaning of the word “foreclosure.” (Click here for a copy of this case.)
Owners of a home in Tennessee obtained a mortgage on their home from plaintiff [...]
Because so much litigation has its roots in deficient drafting, I keep half an eye on new case law, and I can be counted on to leap on anything that has a bearing one of my pet subjects. But I suspect that most cases that arise out of poorly drafted contracts don’t involve hot-button drafting [...]
I should have had enough of material and material adverse change, given that I discuss materiality in chapter 7 of MSCD, in this law review article, and in this article in the M&A Lawyer. But the topic continued to nag at me, and recently the fog cleared—I realized that my analysis was significantly flawed, and [...]
I’m grateful to David Gurfein, an associate in the New York office of Cozen O’Connor, for informing me of AIU Insurance Co. v. Robert Plan Corp., 14 Misc.3d 1216(A), 2006 WL 3904521 (N.Y. Sup. Dec. 26, 2006). This case considers how confusion over the distinction between that and which can result in ambiguity. (Click here [...]
I have a particular interest in the real-world implications of indifferent drafting, so I’ve been contemplating doing an occasional series on drafting screw-ups that make the news. I was prompted to inaugurate this series by Bryan Sims, who was kind enough to point out to me this article from today’s issue of the Canadian newspaper [...]
