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
Neal Goldfarb has unleashed on the world this post comparing how the judicial principles of interpretation that have a bearing on syntactic ambiguity compare with how English is actually understood. It looks rigorous as heck, but I haven’t read it yet. Why not? Well, it is quite long, but the main reason is that Neal’s a litigator and I’m a … Read More
A reader told me about this article on Bloomberg BNA. It’s about a recent opinion of the Sixth Circuit Court of Appeals that deals with syntactic ambiguity in a Michigan statutes: The [Michigan Medical Marihuana Act] prohibits “disciplinary action by a business or occupational or professional licensing board or bureau” against a “qualifying patient.” But the Sixth Circuit opted not … Read More
Deciding what label to apply to a particular source of uncertainty in contract language can be challenging. A case in point: In this 2010 post and this 2007 post on AdamsDrafting I discuss disputes regarding whether a provision that refers to something in the singular also encompasses the plural. I discuss that phenomenon further in this March 2012 post and … Read More
Consider California Corporations Code § 313 (emphasis added): Subject to the provisions of subdivision (a) of Section 208, any note, mortgage, evidence of indebtedness, contract, share certificate, initial transaction statement or written statement, conveyance, or other instrument in writing, and any assignment or endorsement thereof, executed or entered into between any corporation and any other person, when signed by the chairman of … Read More
