Another Helping of Syntactic Ambiguity

Bryan Keenan,  director of the Wilming­ton, Delaware, law firm of Gordon, Fournaris & Mammarella, let me know about an instance of syntactic ambiguity addressed by the Delaware Court of Chancery in the recent case In re Mobilactive Media, LLC (here). (Syntactic ambiguity involves uncertainty over which part of a sentence a given phrase modifies or which part of a phrase a given word modifies.)

Here’s the language at issue (emphasis added):

The purpose of the Company is to license, develop and own and market technology, content and applications for the purpose of enabling and enhancing interactive video programming and advertising content (the “Purpose”).

The parties argued over interpretation of the closing noun phrases. Which of the following alternative meanings applied?

  1. … interactive video programming and interactive advertising content …
  2. … interactive video programming and interactive video advertising content …

The court opted for meaning 1 (see page 44 of the opinion). (A third possible meaning is “advertising content and interactive video programming,” but neither party sought that meaning.)

As usual, from the drafting perspective which meaning had been intended is less significant than the fact that the parties ended up arguing over meaning. Once you learn to spot this kind of ambiguity, it’s easy enough to eliminate it, whether by repeating a modifier, switching the order of elements in the sentence, using enumeration, or another technique. Essentially, the drafter should have used meaning 1 or meaning 2, whichever was the intended meaning.

If you want to see other examples of syntactic ambiguity, search for “syntactic” on this blog. (Currently, the search box is, annoyingly, at the lower right.) And MSCD3 has a chapter devoted to syntactic ambiguity.

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.