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.