Vagueness

Fighting Over “Diner” and “Similar”

In this post at ContractsProf Blog, Stacey Lantagne writes about Northglenn Gunther Toody’s, LLC v. HQ8-10410-10450 MELODY LANE, LLC, No. 16-CV-2427-WJM-KLM, 2018 WL 1762611, at *2 (D. Colo. Apr. 12, 2018) (PDF here). Here’s my take on this dispute. The Opinion The plaintiff operated Gunther Toody’s, a 1950s-style restaurant in a mall. According to the court, the lease “prohibits the … Read More

A Nuance of Vagueness

I’ve long wrestled to articulate what I sensed was a distinction between two vague words, promptly and substantial. Here’s my latest attempt: Different vague words might pose different challenges. For example, in a given context the time constraints might be clear-cut enough so that there’s little room for dispute over what’s required for a party to act promptly. By contrast, … Read More

A New Taxonomy of Vagueness in Contracts

This contains my first attempt at expressing something I’ve been mulling over for a while—the notion of “floating vagueness.” I’m prepared for it to end up in the dustbin. [Updated 25 June 2016: Hey guess what, it did end up in the dustbin! I found a way to express more simply the concepts I was groping for. My revised analysis will … Read More

On Not Indulging in Different Ways to Say “Promptly”

Today I saw the following in a contract on EDGAR (emphasis added): Owner shall provide Contractor notice (which may be oral or by electronic means) of such non-compliance and Contractor shall correct such non-compliance right away … So add right away to the list of alternative ways of saying promptly. MSCD 13.536 already offers expeditiously, as soon as practicable, and forthwith. … Read More

When You’re Not Specific Enough in How You Use “Reasonable”

Last week reader Andy posted here a comment asking for advice regarding unplanned changes to a new apartment. Usually I can’t do much with such comments, as I’m not about to get involved every dispute that comes along. But I thought this comment raised an interesting issue, so here it is: I have a question relating to the word “reasonable”. … Read More

You Cannot Be “Serious”!

The severability provision offered in the article I mention in this post includes the following phrase: … provided the reason for the invalidity or unenforceability of a term is not due to serious misconduct by the Party seeking such compensation. To which I say, “You cannot be ‘serious’!” The word serious falls into that category of vague words and phrases … Read More

“Generally”

Here’s what Garner’s Modern American Usage has to say about generally: generally has three basic meanings: (1) “disregarding insignificant exceptions” <the quality of the acting is generally very high>; (2) “in many ways” <he was the most generally qualified applicant>; and (3) “usually” <he generally leaves the office at five o’clock>. In contracts, the word generally appears in standard phrases … Read More

“Usually”

The problem with the word usually isn’t just that it’s vague. Instead, it’s that it exhibits the free-floating vagueness that we previously encountered in substantially (see this 2011 post)—vagueness uncoupled from a reasonable-person standard. How often does something have to occur for it to occur usually? Who knows. I’m not comfortable with that level of vagueness. A suitable fix might … Read More

When Vagueness Meets Imprecision

Here’s my attempt at articulating, for the first time, the interplay of vagueness and imprecision. Excuse the lack of hyperlinks to analysis of the different terms I mention. Vagueness is a function of uncertain borders. It’s nice to be precise, but in some contexts you have to resort to vagueness by using, for example, the term reasonable efforts. But the … Read More

Using the Terms “Negligence” and “Gross Negligence” in a Contract

In this recent post I considered whether there’s any point in providing in a contract a definition of the term gross negligence. And in this other recent post I considered the adjective wanton. But both posts were inadequate, so I offer instead in this post a broader look at use of the terms negligence and gross negligence in contracts. It … Read More