You know you’re suitably paranoid about the potential for confusion in contract language if you spot instances of that sort of confusion in your everyday life. Yesterday I was in urgent need of ice-cream therapy, so I got me a pint of the Ben & Jerry’s flavor (previously unknown to me) called “Salted Caramel Brownie.” Here’s the fine-print description: Vanilla … Read More
Compared with what was in the fourth edition, chapter 12 (Syntactic Ambiguity) of A Manual of Style for Contract Drafting has changed little. (I added a section on delimiting commas in coordination and a section on multiple instances of syntactic ambiguity in a sentence, but that’s pretty much it.) That shouldn’t come as a surprise. That chapter and the other … Read More
Obviously, all eyes are on the fight between Twitter and Elon Musk in the Delaware Court of Chancery. Well, not quite all eyes. I’m keeping only half an eye on it—I’m not a big-deal watcher. On the other hand, I am a contract-language watcher. With that in mind, here are some suggestions for how not to get more confused than … Read More
It’s best to understand what we mean when we say contract language is ambiguous. For linguists, text is ambiguous if it’s capable of expressing two or more inconsistent meanings. If some who read a contract provision think it means one thing and others think it means something else, that provision is ambiguous. Because ambiguity creates confusion and causes many contract … Read More
I noted with interest Vice Chancellor Glasscock’s opinion in Weinberg v. Waystar, Inc., decided today (PDF here). Here’s the language at issue: The Converted Units shall be subject to the right of repurchase (the “Call Right”) exercisable by Parent, a member of the Sponsor Group, or one of their respective Affiliates, as determined by Parent in its sole discretion, during … Read More
If there’s one thing I’ve learned, it’s that you’d have to look far and wide to find a judge who has a clue about commas. Thanks to the opinion in ECB USA, Inc. v. Chubb Insurance Co. of New Jersey, No. 20-20569-CIV, 2021 WL 5989230 (S.D. Fla. Dec. 17, 2021) (PDF here), we have further reason for despair in that … Read More
In this July 2020 post I discussed a feature I called “delimiting commas in coordination.” It’s a subtle topic, and over time I realized that my post wasn’t as clear as it might be. So now I permit myself take two *** This post considers a feature of comma use that might not be clear enough to rely on to … Read More
Thanks to a tip from @NY_Contracts, here’s yet another story of a court failing at textual interpretation. The opinion in question is Dan’s Hauling & Demo, Inc. v. GMMM Hickling, LLC, No. 1068, 2021 WL 1711512 (N.Y. App. Div. 30 Apr. 2021) (PDF here). It’s from the Fourth Department of the Appellate Division, New York State’s intermediate appellate court. The plaintiff … Read More
In NB Alternatives Advisers LLC v. VAT Master Corp. (Del. Ch. 22 Apr. 2021) (PDF here), the defendants wanted to litigate a matter in Wisconsin; the plaintiffs sought a permanent injunction. On an expedited basis, the Delaware Court of Chancery granted the injunction. Hall-of-fame tipster Glenn West then told me about it, so on an expedited basis, here we go. … Read More
Drafters can learn three things from courts screwing up analysis of ambiguity. First, you learn what ambiguous text looks like. Second, you learn that fights over ambiguous contract language are messy and expensive. And third, you learn that too many courts are incapable of analyzing ambiguous contract language in a way that makes sense; see this 2020 blog post for … Read More
