In the course of revising a draft contract, I encountered the following; Upon occurrence of a Change in Law or a Force Majeure Event that adversely affects the Seller’s performance under this agreement, the Buyer and the Seller shall negotiate in good faith whether to issue a change order addressing the effect of those circumstances and the terms of any … Read More
Regular readers will recall that syntactic ambiguity arises from uncertainty over what part of a sentence a given phrase modifies, or what part of a phrase a given word modifies. (If you want a bellyfull of syntactic ambiguity, search for “syntactic” using this blog’s search function.) It can sometimes seem as if syntactic ambiguity is a curiosity rather than something … Read More
Bryan Keenan, director of the Wilmington, Delaware, law firm of Gordon, Fournaris & Mammarella, let me know about an instance of syntactic ambiguity addressed by the Delaware Court of Chancery in the recent case In re Mobilactive Media, LLC (here). (Syntactic ambiguity involves uncertainty over which part of a sentence a given phrase modifies or which part of a phrase a given … Read More
Neal Goldfarb has unleashed on the world this post comparing how the judicial principles of interpretation that have a bearing on syntactic ambiguity compare with how English is actually understood. It looks rigorous as heck, but I haven’t read it yet. Why not? Well, it is quite long, but the main reason is that Neal’s a litigator and I’m a … Read More
Syntactic ambiguity is ambiguity that arises due to uncertainty regarding which part of a phrase a given word modifies, or which part of a sentence a given phrase modifies. Syntactic ambiguity can arise in any kind of writing, and examples occurring outside of contracts can be instructive for contract drafters. Reader Sean Gajewski, a third-year student at Hofstra University School … Read More
The opinion just issued by the Eighth Circuit Court of Appeals in Anderson v. Hess Corporation (go here for a PDF copy) primarily concerns the phrase “drilling or reworking operations”. It occurs several times in the five mineral leases at issue. Does “drilling” constitute a noun, or is it an adjective modifying “operations”? In other words, the question posed was, … Read More
This item at The Volokh Conspiracy noted that the “serial comma” has been appearing less and less frequently in the New York Times. At Legal Blog Watch, Eric Lipman pointed out that a Volokh commenter had suggested that the serial comma is important for clarity in contracts. Here’s the entire comment, posted by “Mark”: I think we should at least all … Read More
The ever-alert Steven Sholk has informed me of another legal opinion discussing syntactic ambiguity. This one was issued by the Tenth Circuit Court of Appeals and addresses how much of a provision in an insurance policy was modified by a closing modifier. (Click here for a copy of the opinion.) I’m not particularly interested in what the court held, because … Read More
Reader Patrick Grant told me about a ConstructionRisk.com newsletter describing a Texas case involving syntactic ambiguity. (Syntactic ambiguity derives from uncertainty over which part of a sentence a given word or phrase modifies.) The case in question was Consolidated Reinforcement v. Carothers Executive Homes, 271 S.W.3d 887 (Tex. App. 2008), a case before the Texas Court of Appeals, Third District. … Read More
Reader Kazu brought to my attention the following language from the recently enacted Lilly Ledbetter Fair Pay Act (emphasis added): For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation … Read More
