“Close of Business”: The Kind of Vagueness You Don’t Want

A reader alerted me to a recent opinion of the High Court of Justice of England and Wales in Lehman Brothers International (Europe) v. ExxonMobil Financial Services BV, [2016] EWHC 2699 (Comm) (here).

At issue was the meaning of the phrase close of business, as used in a notices provision in a contract. ExxonMobil submitted a notice to Lehman’s London offices at 6:02 p.m. on 22 September 2008. Was it timely? Lehman argued that close of business was 5:00 p.m.; ExxonMobil argued that it was 7:00 p.m.

As usual, I don’t care who won that particular argument (ExxonMobil). All I care about is avoiding fights. So the moral of this story is clear: don’t use the phrase close of business in contracts.

Updated 13 December 2017: Behold the following tweet by @cearta:

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.