For a general overview of the case, go here for a summary by McFarlanes. Me, I just want to focus on the two main issues. This post deals with the first of them.
Here’s the relevant language:
Any such notice may be served by delivering it personally or by sending it by pre-paid recorded delivery post to each party (in the case of the Buyer, marked “for the attention of directors”) at or to the address referred in the Agreement or any other address in England and Wales which he or it may from time to time notify in writing to the other party.
One issue facing the court was whether the two means of serving notice specified in this provision were the only two means authorized under the contract, or whether the provision simply specified two means of service from among any number of permitted means.
Ah, our old friend, the expectation of relevance! Here’s how The Cambridge Grammar of the English Language, at page 38, describes it: “A central principle in pragmatics, which drives a great deal of the utterance interpretation process, is that the addressee of an utterance will expect it to be relevant, and will normally interpret it on that basis.”
Here’s MSCD 2.96, which explains how relevance has a bearing on how language of discretion is interpreted:
Imagine that you say to Frank, “You may go to the movies.” That could mean “You may engage in any number of activities, one of which is going to the movies.” It could also mean “The only activity that you’re permitted to engage in is going to the movies.” But if you say to Frank, “You may go to the movies or you may go to the library,” it’s more likely that you’re telling Frank that those are his only two choices.
So the more detail you provide in language of discretion, the greater the likelihood that you intend for that language of discretion to be exclusive. Because the language at issue in Ener-G Holdings specifies two means of service, that makes it easier to conceive of those means as being the exclusive means of service permitted under the contract.
As usual, I’m not much interested in figuring out who had the best of that argument. Instead, the question is how you avoid such problems. Simple: if you want language of discretion to be exclusive, say that it’s exclusive. Generally that means putting an only in there somewhere. If you’re dealing with language of discretion that’s detailed enough that it might raise the issue of relevance, make it explicit that it’s not exclusive.
Bonus: This 2008 blog post discusses a case raising similar issues to the Ener-G Holdings case.
And go here for my second post about this case.