Business Law Today, the online magazine of the Section of Business Law of the ABA, has published my new article Making a Mess of Ambiguity: Lessons from the Third Circuit’s Opinion in Meyer v. CUNA Mutual Insurance Society. It explores, in detail, a recent instance of confusion over the meaning of an or in a contract. Go here to read it.
Writing this article was particularly interesting and challenging, so I hope you find it worthwhile. For the drafter, the only way to avoid this kind of confusion—ambiguity of “the part versus the whole”—is to learn how to spot it. MSCD chapter 10 explores it at length. Paragraph 10.39 mentions briefly the kind of confusion on display in Meyer v. CUNA. It’s safe to say that I’ll be expanding that discussion in the third edition.
And a big thank-you to Caroline Vodzak for telling me about this case. She blogs at VodzakLegal about Pennsylvania appellate cases.
6 thoughts on “Business Law Today Publishes My New Article “Making a Mess of Ambiguity””
Ken, excellent analysis (on your part). I am always on the look-out for a quick fix to drafting ambiguities, and I think I have found one in the case you mention that involves using only one additional letter: “n”, ie changing “or” to “nor”. The result is rather clumsy (so is sub-optimal), but makes it more difficult to argue the disjunctive point. I did look to see whether we could add a “neither” as well, but that would require some more substantial restructuring.
Mark: As my father would occasionally say, “Praise from Sir Hubert!” And yes, neither … nor can be a clearer alternative, depending on the context. Ken
I’m printing the article and am looking forward to reading it.
On a completely different note, I have always wondered how you came up with the name for your blog “The Koncise Drafter”. Deliberate misspelling drives me bonkers. I can let it slide for psuedo-celebrities who might not have paid attention to the spelling unit in grade school (“Klothing by Kardashian” – arg!) but this is a legal blog!
I respectfully suggest “The Concise Drafter”.
I see your point, and the Kardashian comparison hurts! But the blog’s name is linked to the company’s name. And calling the company “Concision” wouldn’t have worked. I could have instead given the company some random name, but that’s a different can of worms.
I read the article and loved it. You are a man after my own heart and are now part of my RSS reader so I’ll never miss another post.
Your whole/part analysis reminded me of a riddle:
Q: I have two U.S. coins in my pocket totaling $.55. One is not a fifty-cent piece. What are they?
A: A fifty-cent piece and a nickel.
(I said “one is not a fifty-cent piece,” not “neither is a fifty-cent piece.”)
I enjoyed your article, but your drafting solution did not
seem quite right.
What do you think of this one?
“Total Disability” means that a member is, because of a
medically determined sickness or accidental bodily injury, unable to perform
any of the duties of any occupation for which he is reasonably qualified by
education, training or experience; except that during the first 12 consecutive
months of disability, “Total Disability” means that a member is not able to
perform substantially all of the duties of his occupation on the date his