Here’s what MSCD 13.761–62 has to say about willful and willfully: As it’s usually used in contracts, the word willful, as in willful misconduct, is not only vague but also ambiguous. It means intentional,” but drafters usually don’t make it clear whether the focus is on the party’s action or on the consequences of the party’s action—it’s possible to act intentionally without intending to … Read More
Joshua Stein (I mentioned him today’s other post) recently asked me about an instance of contract ambiguity. Here’s how he referred to it in a recent email: Here’s an example of the usage I commented on: “If Member A fails to contribute the entire Mandatory Capital Contribution, then Member B shall have the following rights and remedies.” What happens if … Read More
The serial comma is the comma used immediately before the and or or preceding the final item in a list of three or more items. I wrote about the serial comma in this 2010 post, but I revisit it now because something caught my eye in Garner’s Modern American Usage. Here’s what it says on page 676: Whether to include the serial comma has sparked … Read More
Via this post by Ray Ward I learned of the recent opinion of the Second Circuit Court of Appeals in AIG v. Bank of America (PDF copy here). In the opinion, the court states that whether a modifying phrase following a list of nouns or phrases modifies each item on the entire list, or only the last item, depends on whether … Read More
Regular readers will recall that syntactic ambiguity arises from uncertainty over what part of a sentence a given phrase modifies, or what part of a phrase a given word modifies. (If you want a bellyfull of syntactic ambiguity, search for “syntactic” using this blog’s search function.) It can sometimes seem as if syntactic ambiguity is a curiosity rather than something … Read More
New to the third edition of MSCD is a discussion of what I call “antecedent ambiguity.” This recent post on “except as provided below” falls within that category. So does this December 2011 post, this May 2011 post, and this 2011 IP Draughts post. Well, I have another example for you, thanks to the recent Seventh Circuit Court of Appeals … Read More
In the dispute addressed in the recent opinion of the Second Circuit in In re Lehman Bros. Holdings (here), the following contract language was at issue: Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any Person or entity not a party to this Agreement except as provided below. One of the litigants … Read More
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 … Read More
I’d like to revisit and/or. For the most part, there’s nothing to say about and/or other than (1) A and/or B means A or B or both, (2) and/or can create confusion and be misused, and (3) it’s clearer to use instead the structure A or B or both. Beyond that, I don’t get worked up about and/or, as many … Read More
[Revised 6:30 p.m. EDT, October 13, 2012, to reflect suggestions by Rodney Huddleston.] Thanks to a recent case, I stumbled on a subset of ambiguity associated with or. Consider Ohio Rev. Code Ann. § 1705.35 (West): Instruments and documents providing for the acquisition, mortgage, or disposition of property of a limited liability company are valid and binding upon the company … Read More
