More Antecedent Ambiguity: “Thereof”

Cousin Joshua Stein sent me a copy of an article in the May/June 2012 issue of Probate & Property. It’s by Mark A. Senn, and it’s entitled Writing Good, Legal Sense and More or Less. (Go here for a PDF copy.) As you can tell from the title, it’s a little offbeat, but it contains a couple of tidbits that I found useful.

For purposes of this post, what’s of interest is a case mentioned in the article, Trustees of First Union Real Estate Equity & Mortgage Investments v. Mandell, 987 F.2d 1286 (7th Cir. 1993) (PDF copy here). It provides another example of antecedent ambiguity, which is a kind of ambiguity that I mentioned most recently in this August 2013 post and this March 2013 post. I’ve explored this kind of ambiguity less than other kinds, so I like to keep track of examples as I encounter them.

Here’s the language at issue (emphasis added):

Section 5. Additional rent. (a) Tenant shall pay, from time to time, to Landlord as additional rent fifty percent (50%) of any and all percentage rent which S.S. Kresge Company, or its successor or assigns, pays to Tenant under their lease for part or all of the Demised Premises during the initial term and any period thereof, promptly after Tenant receives such percentage rent payments. Tenant shall forward with such payment such reports as Tenant shall receive from S.S. Kresge Company showing the computation of percentage rents.

And here’s some of what the court had to say:

The question before us is whether the ground lease will require Mandell to continue paying percentage rent to Merchants Bank after the expiration of the initial period of the building lease should both Mandell and Kresge exercise one or more of their respective five-year options to extend.

As with many contract cases, the dispute resulting in this litigation did not arise until many years after the contract’s execution. In this case, the parties had no occasion to question the ground lease until early 1990 when First Union decided to sell its interest in the ground lease. The potential buyer refused the deal because of a perceived ambiguity in section 5(a). Specifically, the buyer was concerned with the italicized language in section 5(a) quoted above which reads “and any period thereof.” If these words refer to the term “initial term,” then percentage rent would seemingly cease upon the expiration of the twenty-five-year period. If, however, the words refer to the term “their lease,” then the obligation to pay percentage rent presumably would continue during any extension of the ground lease. Faced with this interpretive dilemma, First Union contacted Mandell requesting a position on the percentage rent issue. Not surprisingly, Mandell responded that he understood the lease to mean that percentage rent was collectible only during the initial term.

Viewing the ground lease as a whole, the [district] court opined that “[i]t is more likely that the parties included the clause to clarify that the obligation to pay additional rent under the Ground Lease extended to percentage rent received during any period of the Kresge Lease.” Dist.Ct.Op. at 14 (emphasis in original, footnote omitted). While aware that neither party proffered a perfect interpretation of the ambiguous terms, the court was convinced that having “and any period thereof” refer to “their lease” would result in the least amount of redundancy and surplusage.

In conclusion, when considering section 5(a) with a mind toward common sense and the motivations and objectives underlying the ground lease—as we must under Indiana’s authorities—we can only conclude that the original parties intended the phrase “and any period thereof” to refer to the antecedent term “their lease” rather than “initial term.” Accordingly, the tenant under the ground lease is bound contractually to pay the landlord percentage rent during any extension of the building lease, should both the building and ground leases be extended.

By now you’re tired of hearing this from me, but from the perspective of those who draft or review contracts, what the court concluded is less relevant that the fact that this dispute could easily have been avoided. The moral of this story is that although a thereof or thereunder allows you to be concise, you have to make sure that it’s perfectly clear what exactly it refers to.

(If a thereof or thereunder saves you just a few words, get rid of it, whether or not it presents the possibility of confusion. They add a fusty air to contracts, so you should use them only if they offer real economy.)

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.