I’ve written occasionally about principles of interpretation (also referred to as “canons of construction”) used by courts. In this post I say that “they’re principles for arbitrarily reverse-engineering meaning where meaning is otherwise not apparent.” I said pretty much the same thing in this recent tweet:
People use the phrase "canon of construction" because it sounds grander than "convenient fiction".
— Ken Adams (@AdamsDrafting) December 29, 2015
And in this article I do battle with a specific rule of interpretation, the one that attributes significance to a comma that precedes a closing modifier.
So I’m not a fan. Shouldn’t I be willing to state in a contract that this or that rule of interpretation doesn’t apply? Well, I’m not a fan of such provisions either.
Here’s one example:
the rule known as the ejusdem generis rule shall not apply and accordingly general words shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things; and general words shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words;
And another:
As a consequence, the parties do not intend that the presumptions of laws or rules relating to the interpretation of contracts against the drafter of any particular clause should be applied to this Agreement or any agreement or instrument executed in connection herewith, and therefore waive their effects.
I’m sure you can think of others.
I’m not a fan of such provisions for two three reasons [revised 20 January 2016 to make the first point two separate points]:
First, I suspect that courts would generally not be inclined to have contract parties tell them how they should interpret confusing contract language.
Second, given the chaos that prevails in the copy-and-paste world of traditional contract drafting, there’s little reason to assume that the approach reflected in any such provision was in the mind of whoever cobbled together the language at issue.
And third, such provisions are intended to neutralize potential confusion. I prefer instead to focus on eliminating any such potential confusion, and I’m confident that my guidelines allow me to do so.
But these are just some initial thoughts. This has the potential to be a meaty topic.
1/ ‘Convenient fiction’ is fair, but I like to refer to the canons of construction as ‘judicial default rules’. They don’t apply unless the parties have failed to be clear.
2/ As for express nullifications of particular canons, I haven’t formed a general opinion, but I wouldn’t hesitate to say, for example, ‘this agreement is the joint work of the parties’.
3/ A drafter can kill ejusdem generis in far fewer words than the example uses.
4/ I think courts would be thrilled to have parties tell them how to interpret confusing contract language, and wouldn’t object any more than they object to definitions in contracts.
5/ Agree completely that an ounce of prevention is worth a pound of cure. It’s better to state the matter clearly in the first instance than to start with unclear wording and then tack on more verbiage in hopes of cleaning up the mess the first wording made.
Here’s another case that bolsters your point about contracts not affecting how courts will interpret legal principles (cited by Cynthia Abesa on Redline): http://courts.delaware.gov/opinions/download.aspx?ID=234210
This one has to do with the ubiquitous clause that confesses the right to get an injunction for certain types of breach.
The court does say that ‘irreparable harm’ clauses are ‘can be helpful when
the question of irreparable harm is a close one’. So they may not be a complete waste of toner.
I think this is a little different from saying that a principal of interpretation doesn’t apply.
Ken, my issue is that courts (worse, tribunals) will equally reverse engineer, and I want to control that to the extent I can. In virtually every legal system, one of the principles of contractual interpretation is determining the [common] intent of the parties. English judgments often harp on about this as being their task. I have no problem, as a convenient fiction, with using the interpretation principles to tell the reader what the parties’ common intent was. Frankly, even if courts are prone to ignoring the language, I’d rather have it there to point at than not. I agree that clarity is the first line of defence, but also have no problem telling the courts that the parties were in agreement about some principle of interpretation.
My first point in the post really consists of two components: first, courts might well ignore such provisions, and second, such provisions routinely don’t reflect deal realities. You address the first component; the second component is still a factor.