It’s a Bad Idea to Rely on Principles of Interpretation in Deciding on Contract Language

Yesterday I encountered this LinkedIn post about “canons of construction.” (I call them “principles of interpretation.”) The post begins as follows:

Tip for law students and newer attorneys:

Familiarize yourself with the rules of contract interpretation (often called “canons”), if, like me, you didn’t learn them in law school.

Courts rely on these default rules to interpret contracts and statutes. Effective lawyers know the rules and use them to their clients’ advantage—both in drafting and litigation.

Below, I’ve summarized some of the most common rules of interpretation, but there are many others.

If you litigate contract disputes, then sure—invoke principles of interpretation that favor whatever you want the language at issue to mean. But for two reasons, it’s a bad idea to rely on principles of interpretation when deciding on the text of a contract.

First, courts use principles of interpretation to attribute meaning to confusing contract language. If you have a say in the wording of a contract that ultimately has to be interpreted, that means the language at issue is confusing. In other words, you failed at your task. (See my 2017 LinkedIn post Be Afraid of Contract Interpretation, here.)

And second, to make matters worse, principles of interpretation are expediency-driven notions invented by courts to make it easier to resolve disputes over confusing text. Hence the standard observation that you can invoke different principles of interpretation to support giving different meanings to a given text.

Some principles of interpretation are particularly shaky. Regarding the frailty of the rule of the last antecedent, see Joe Kimble’s article The Doctrine of the Last Antecedent, the Example in Barnhart, Why Both Are Weak, and How Textualism Postures (PDF here). And if you want to see where the rule of the last antecedent really goes off the rails, check out my article Bamboozled by a Comma: The Second Circuit’s Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp. (PDF here).

So one thing that principles of interpretation aren’t is “rules of grammar.” See this 2022 blog post about that. This is from that post:

So here’s my general principle: If a court says that principles of interpretation are rules of grammar, don’t expect much from their textual interpretation, in that opinion and others. Among the courts that have indulged in the rules-of-grammar thing is the U.S. Supreme Court; see this 2021 blog post.

Again, in litigation, principles of interpretation are dodgy but unavoidable, and they might work in your favor, but relying on them for contract drafting is asking for trouble.

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.

2 thoughts on “It’s a Bad Idea to Rely on Principles of Interpretation in Deciding on Contract Language”

  1. Hi Ken,

    Thank you for this blog post.

    My understanding has always been that once a word has been interpreted by the court, same is likely to be the universal meaning and so advisable to use.

    Why should it be avoided even when the courts have given clarity on the meaning?


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