In Contracts, Uncertainty Is Everywhere

One interesting tidbit in the Tim Cummins post I discuss in this post is his reference to a court opinion involving a dispute over meaning of the word “new”. It’s Reliable Contracting Grp., LLC v. Dep’t of Veterans Affairs, 779 F.3d 1329 (Fed. Cir. 2015) (PDF copy here). The issue in that case was whether generators that had never been used but had been previously owned and damaged by improper storage were nevertheless “new”.

On reading Tim’s post and considering the implications of new, I made a point of noting the first two adjectives that came into my head. They happened to be dead and blue. (I’m not inclined to read any deep significance into that!) Those words aren’t necessarily everyday contract words, but it so happens that I could imagine a vigorous dispute arising over the meaning of dead and over the meaning of blue. Does dead mean “brain dead” or something else? And blue shades into other colors, so at what point does a color stop being blue?

Many, many words could give rise to this sort of uncertainty, depending on the circumstances. (It so happens that the kind of uncertainty caused by new, dead, and blue is ambiguity, which is a function of alternative inconsistent meanings. But other sources of uncertainty are equally prolific.)

Ambiguity isn’t a flaw in the system that we could escape by putting our faith in machines. Instead, it’s what happens when the infinitely fluid English language interacts with the high-stakes world of business contracts. The only way to combat ambiguity is to spot it and eliminate it by expressing exactly the meaning you intend. That takes study, semantic acuity, and experience, not technology.

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.

3 thoughts on “In Contracts, Uncertainty Is Everywhere”

  1. Ken:

    How is this ambiguity, rather than undue generality or maybe failure to address an issue? I’d have thought that we could agree that “dead” includes a situation where the heart is stopped, there is no brain activity, and the body has assumed room temperature. The meaning of “dead” isn’t inconsistent in that situation. We might disagree whether “dead” also includes “brain dead.” But the problem seems to be that our word “dead” isn’t specific enough about the criteria that lead one to call someone dead. What am I missing?


  2. The taxonomy of uncertainty is as messy as uncertainty itself, so it’s best to bear in mind that there are (a) text problems to be fixed, and (b) names to put on the myriad kinds of such problems. The former are to be approached viciously, the latter gently and tentatively.

    An example of the need for calm in nomenclature is the following imaginary dialogue.

    ABEL: ‘Conflict’ is really just a form of ‘ambiguity’.
    BAKER: No, it’s not. With lexical ambiguity, a term has more than one reasonable interpretation. With conflict, two terms, each with only one reasonable interpretation, clash.
    ABEL: But when a provision has two clashing terms, doesn’t that make the provision ambiguous?

    BAKER: No, because if two clear terms clash, there is no reason to heed one and spurn the other, so it’s not a case of *two* reasonable interpretations, but of *no* reasonable interpretation of the provision as a whole.
    ABEL: Not so. A court could resolve a conflict by finding that one clear provision is a clear mistake, contradicting the manifest intent of the parties gleaned from the contract as a whole. If that’s more reasonable than deeming the other clear provision a mistake, then the court has chosen between two interpretations, thus resolving the *ambiguity*. Queue E. Dee!
    BAKER: Not so fast. Your example omits the needed fact that “both* possible interpretations be reasonable.

    Let’s stop the dialogue there. The point is, fixing the problem is primary, naming the problem is secondary.


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