Go here for an article I posted on LinkedIn today, Be Afraid of Contract Interpretation.
Every so often I post a particularly general piece on LinkedIn instead of on this blog, with the notion that something on LinkedIn might catch the attention of people who would never have heard of me otherwise. What I have to say on LinkedIn will generally come as no surprise to my regular readers.
Ken:
I’m shocked — shocked, I say! — that you think having a court interpret a contract is second-best to everyone knowing what it means. Surely the theory of tested language tells us that we can’t truly know what anything means for sure until a court interprets it for us? Otherwise, why would we uniformly prefer stodge from the 1950’s, encrusted with every oddity since, over clean, clearly-written, modern prose?
Chris
Contract interpretation will forever be a millstone around our necks because there will always be deals out of which someone will want (to ring a change on–or is that wring a change from?–Winston Churchill). And as long as lawyers accept fees to offer silver-tongued disquisitions on why black means white, judges will have to determine whether, under some set of circumstances, black really does mean white. And some of them will, for a variety of reasons, determine that it does. There may be foolproof ways of doing things, but I doubt there will ever be a judge-proof way of writing a contract.
Vance:
I like the phrase “judge-proofing,” but I don’t think I’ll use it in court.
Chris
‘In the absence of ambiguity, no occasion for interpretation arises’. In MSCD-speak, this judicial maxim becomes ‘in the absence of uncertainty, no occasion for interpretation arises’.
Since one sense of ‘interpretation’ is ‘to state the meaning of’, it might be better not to state this drafting goal as ‘avoiding the need for interpretation’, but rather as ‘certainty of meaning’, which avoids the need to interpret the word ‘interpretation’.