Drafting Around Principles of Interpretation

I’ve written occasionally about principles of interpretation (also referred to as “canons of construction”) used by courts. In this post I say that “they’re principles for arbitrarily reverse-engineering meaning where meaning is otherwise not apparent.” I said pretty much the same thing in this recent tweet:

And in this article I do battle with a specific rule of interpretation, the one that attributes significance to a comma that precedes a closing modifier.

So I’m not a fan. Shouldn’t I be willing to state in a contract that this or that rule of interpretation doesn’t apply? Well, I’m not a fan of such provisions either.

Here’s one example:

the rule known as the ejusdem generis rule shall not apply and accordingly general words shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things; and general words shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words;

And another:

As a consequence, the parties do not intend that the presumptions of laws or rules relating to the interpretation of contracts against the drafter of any particular clause should be applied to this Agreement or any agreement or instrument executed in connection herewith, and therefore waive their effects.

I’m sure you can think of others.

I’m not a fan of such provisions for two three reasons [revised 20 January 2016 to make the first point two separate points]:

First, I suspect that courts would generally not be inclined to have contract parties tell them how they should interpret confusing contract language.

Second, given the chaos that prevails in the copy-and-paste world of traditional contract drafting, there’s little reason to assume that the approach reflected in any such provision was in the mind of whoever cobbled together the language at issue.

And third, such provisions are intended to neutralize potential confusion. I prefer instead to focus on eliminating any such potential confusion, and I’m confident that my guidelines allow me to do so.

But these are just some initial thoughts. This has the potential to be a meaty topic.

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.