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.

5 thoughts on “Another Helping of Syntactic Ambiguity”

  1. Yuk! Terrible drafting and terrible behaviour. Can you get unclean hands just from reading a case like this one?

    The drafting of the Purpose definition looks to me more like marketing speak than contract drafting. Did they just copy and paste something from a prospectus into the contract? It reeks of industry jargon, eg “programming” distinguished from “advertising content”. And is that “license” in the sense of license-in? It doesn’t make much sense where it appears if it means license-out.

    • I confess that I didn’t have the stomach to look more closely at this language. Yes, the odds are than you or I would have come up with something drastically different.

  2. [I’m posting this for Chris Lemens, who is currently experiences computer challenges.]

    In today’s blog post, you offered up a few solutions to the problem. Would it also have been useful to use hypenation more thoroughly, such as:

    interactive-video programming and advertising content

    interactive video-programming and advertising content

    It seems like that could have helped some, though not completely.It would have at least distinguished between alternatives 1 and 2, right?

    • Chris: That’s a great point: if you’re dealing with a multi-word modifier, be on the lookout for phrasal adjectives. But “video-programming” wouldn’t work as a phrasal adjective unless it modifies “content.”

      In this case, as Mark and I suggested in earlier comments, the best fix would be to redo the entire provision.


      • Ken:
        And here’s me thinking that both programming and advertising modified content. Yet another syntactic ambiguity.


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