A Random Instance of Confusing Contract Language

While trawling through caselaw, I encountered Gingras v. Avery, 90 Conn. App. 585, 591, 878 A.2d 404, 408 (2005). It involved a fight over the following:

The closing shall take place on or before sixty (60) days after subdivision approval; but in no event later than March 15, 2003.

The developers of the property in question didn’t obtain subdivision approval but argued that they were nevertheless entitled to close the deal. The developers lost, but not before the dispute went to trial court and then appellate court.

I suggest that part of the problem is how the sentence at issue was worded. I could argue with a straight face—sort of—that the second part (“no later than March 15, 2003”) operates independently of the first part (“on or before sixty (60) days after subdivision approval”). In other words, that the sentence could be read to mean as follows:

The closing shall take place on the earlier of (1) on or before sixty (60) days after subdivision approval and (2) March 15, 2003.

In the context, that wasn’t a plausible meaning, which is why the developers lost. But part of the job of a contract drafter is to deprive disgruntled contract parties of the opportunity to wage a losing battle.

So what would I have done? Probably I would have imposed on the parties an obligation to use reasonable efforts to close no later than 60 days after approval, and I would have separately stated that the drop-dead date was March 15, 2003.

Why single out this dispute to write about? I do my best to categorize what makes for confusing contract language. That allows me to impose some order. But the topic is too sprawling and complex for everything to fit within my taxonomy. This dispute is a case in point. What general observation can I draw from it. None that I can think of at the moment, other than let’s be careful out there.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

2 thoughts on “A Random Instance of Confusing Contract Language”

  1. I think the trial court was wrong to read a condition into a deadline description that boiled down to ‘the parties shall close before the earlier of point A and point B’.

    I’m not sure Ken’s proposed language (BTW undisciplined use of ‘shall’) would escape the fate of the language the parties used.

    In hindsight, the buyer should have insisted on a provision to the effect that ‘the sellers’ duty to sell does not depend on subdivision approval’.

    I would have drafted the deadline provision as follows, but am not confident that it, any more than Ken’s revision, would escape the trial court’s misreading:

    ‘The parties shall close on or before March 15, 2003, but if the buyer obtains subdivision approval on or before January 13, 2003, the parties shall close on or before the sixtieth day after the date of the approval’.

    The takeaway? ‘If you want an unconditional duty, don’t use language that seems to impose a condition on the duty’.

    • With my rewording, I wasn’t attempting to fix anything! Instead, I was just phrasing the language at issue to express the meaning attributed to it. I say in the post what I would have done.


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