Lexical Ambiguity: A New Case for Fans of Frigaliment

While at LegalTech on Tuesday, I picked up a free copy of the New York Law Journal, just for the sheer novelty of reading it in newsprint.

One item that caught my eye was an account of WebMD LLC v. RDA International Inc., No. 102830/08, 2009 WL 175036 (N.Y. Sup. Ct. Jan. 6, 2009). (Click here to go to the online version of this article (subscription required); click here to go to the ContractsProf Blog account.)

In an internet advertising contract between the litigants, WebMD promised RDA, an advertiser, that a given website would get 36,000 visitors. Subsequently RDA failed to pay in full what it owed under the contract, WebMD sued, and as an affirmative defense RDA claimed that WebMD hadn’t performed, in that WebMD had failed to provide 36,000 “unique” visitors.

This case brings to mind Frigaliment, the case that famously concerned whether an order for “chickens” was for young chickens or for chickens of any age that met the weight and quality specifications. (Frigaliment is mentioned in MSCD 6.5.) The issue raised is that of lexical ambiguity, which arises when the context is insufficient to allow one to determine the sense of a word that has more than one meaning.

But unlike the court in Frigaliment, the court in this case found no ambiguity:

Here, although undefined, the term “visitors” is unambiguous. The definitions advanced by the organizations quoted by defendant refer to “unique visitors,” and do not define the term “visitor” to mean “unique visitor.” If defendant wished to be guaranteed “unique visitors” to the site, it should have specified such in the agreement.

This case played out differently than Frigaliment presumably because RDA had what seems a tougher argument—that the adjective “unique” was in effect meaningless.

But I have some sympathy for RDA—I think “visitor” is ambiguous. After all, if your niece Sally visits your summer rental each weekend during the eight weeks you have it, and she’s you’re only visitor, it’s not likely that you’d subsequently say that you had eight visitors. Instead, you’d likely say you had one visitor. In other words, sometimes the word “visitor” is used colloquially to mean “unique visitor,” with the result that you can have fewer visitors than visits.

On the other hand, if a museum announces that it had 24,378 visitors one month, you can be sure that if John Doe visited the museum three times, he was counted as three visitors, not one. When visitors are anonymous, there’s no such thing as a unique visitor.

How that ambiguity plays out in this context would depend on the intend of the parties. That in turn might be a function, at least in part, of the practice in the industry.

So what does this mean for the contract drafter? Keep your eyes peeled for lexical ambiguity, and run the other way when you spot it. In this case, RDA would have been advised to insist that the provision refer to “unique visitors.” (WebMD might have insisted that the number be reduced from 36,000.) Or the parties could have added something along the lines of the following: “Each visit to the Website will be deemed to have been made by a unique visitor, even if that visit was made by a person who made one or more additional visits to the Website during the period in question.”

Mind you, I’m acutely aware that spotting lexical ambiguity is easier said than done.

Finally, I’m not suggesting that RDA might have prevailed in court if its counsel had made a better argument regarding ambiguity. RDA was not a particularly sympathetic defendant. In the words of the court:

From the documents submitted, it appears that defendant partially paid for plaintiff’s services, never complained about those services until served with notice of the instant lawsuit, received invoices based on the agreements to which it did not object, and acknowledged the entire debt claimed by plaintiff, offering a pay out plan. Additionally, in its opposition, defendant allows that, even under defendant’s interpretation of the contract terms, plaintiff performed at least 70% of its obligations.

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.

4 thoughts on “Lexical Ambiguity: A New Case for Fans of Frigaliment”

  1. In this case, it would have been better to specify that visitors simply meant visits from unique ip’s as counted by some agreed upon analytics program. Without an agreed upon analytics program, traffic counts are likely to differ, even if the programs claim to track the same thing.

  2. Michael: Thanks. I should point out here that I’m entirely clueless on all matters relating to gauging website traffic. In that regard, you might want to look at Eric Goldman’s post on this case; he’s the go-to blogger on technology and marketing. I was looking at the issue primarily from a semantics perspective.

    Eric says that “visitors” is unambiguous, but as I say in the post that’s a conclusion you can reach only by showing what the practice is in the industry. That’s something the court didn’t feel the need to do.


  3. One could argue that Ken’s point in this post goes to the heart of what lawyers do for a living. Clients hire us to ensure that the deal says what they think it says, and that skill is exemplified by eliminating as much ambiguity as possible.

    It’s also great to hear about Frigaliment! I remember the first day of my first year contracts class. Professor Bernstein, a German immigrant, strolled up to the lectern, waited for everyone to quiet down, stood in silence for twenty seconds, then said in a big, booming voice, “What … is … ze chicken?” Then he proceeded to introduce us to the concept of ambiguity in legal drafting.

  4. Drafters always should consider contract terminology in the context of how the words are interpreted in the industry to which the contract relates. Many industries have terms of art with meanings other than the common, plain English meanings (e.g., the word “consideration” in contract law).

    WebMD’s purpose in introducing the definitions advanced by the “organizations” referred to in the quote likely was to demonstrate that the word “visitor” has a specific meaning in its industry. Based on my own experience representing a well-know internet retailer, the term “unique visitors” is commonly used by web-based companies, and is widely understood to mean something different from “visitors.”

    I agree with Mr. Anderman that it is the drafter’s job to understand the meaning of words in the particular business context. I suspect that WebMD’s scrivner understood what “vistors” means in the web advertising industry – and understood that using the term “visitors” was more beneficial to WebMD than using the term “unique visitors.” RDA is a sophisticated advertising agency that failed to notice that the contract measured “visitors” rather than “unique visitors.” That failure does not, however, make the term ambiguous in the web advertising context. In the context of that industry, the term is not ambiguous and to intepret the contract othewise would require increased performance and deny WebMD the benefit of its bargain.

    Maybe the result would be different if one party was unfamiliar with the industry jargon, but the rule should be “caveat emptor” when you are dealing with an unfamiliar industry.


Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.