A reader sent me a link to this Times article on “weasel words.”
I’ve already done battle with weasel words. See this 2012 post about likely and probable, which features two court opinions expressing differing notions on how likely relates to probable. And here’s some of what MSCD has to say:
Even if you assume that it’s clear what likely means, a further problem is that although referring to a mathematical degree of probability is appropriate when you’re rolling dice or playing cards, it’s hard to see how it would be relevant for contract provisions. Arguments over likelihood quickly become meaningless once you move from one or other end of the spectrum of probability into the middle. For example, it’s hard to see how one could have a meaningful debate over whether an event has a 49% or a 51% chance of occurring.
Inspired by the Times article, I searched on EDGAR for a contract that contains realistic possibility. Lo and behold, I found one. Here’s the relevant definition:
“Change in Law” shall mean any change (or proposed change, if in the Lessor’s good faith judgment, such proposed changed has a realistic possibility of becoming law, and would have a material adverse effect on Lessor or any Member) in the Code or in the interpretation, re-interpretation or application thereof made subsequent to the Construction Closing Date and on or prior to the Basic Term Commencement Date.
Good luck with that!
Ken:
I have less aversion to this particular use than I thought I would. Perhaps it’s because I do some government relations work. I can readily imagine calling lobbyists as expert witnesses and asking them whether the bill had a realistic possibility of passage at the time that the lessor did the thing. Realistic possibility is a useful construct in that world. Lots of bills get filed with no hope — and often no intent — of becoming law. The sponsor never schedules it for a first hearing, for example. Or it’s substance is so far from the mainstream of either party that it has no hope of getting out of committee. But if it passes one committee, then it has a realistic possibility, at least in most state legislatures. This language has to accommodate more than that, so getting specific is hard. But since this was in a lease, there would have been only three or four legislative bodies to consider. So getting specific might have been better.
Chris