I’m in the habit of importuning people. (Importune means, according to one dictionary definition, “harass (someone) persistently for or to do something.”)
I don’t importune just anyone though—I limit it to experts in subjects that have a bearing on contract language. And perhaps a better word is supplicate. Those whom I importune, or supplicate, don’t necessarily respond adversely. For example, I ended up benefiting greatly from Rodney Huddleston’s generous advice. (For more about that, see this 2020 blog post.)
In asking for help, I’m in effect suggesting that my work is serious enough that there’s some value to helping me out, and that we both might find our exchange of interest. But as part of the process, usually I’ll fumble around trying to make sense of what you tell me.
All that is by way background to a recent exchange I had with Hrafn Asgeirsson, reader in philosophy and law at Surrey University in England and author of The Nature and Value of Vagueness in the Law. In an email from out of the blue, I asked him for his thoughts on a trial-balloon draft of an article, and he was kind enough to respond.
My draft article contained the following sentence:
Whether something is material depends on the circumstances—material and materially are vague words, in that whether something is material in a given circumstance is a function of whether a reasonable person would consider it material.
That’s consistent with how I’ve understood vagueness generally. Here’s what paragraph 7.42 of my book A Manual of Style for Contract Drafting says:
Vague words used in contracts include the adjectives reasonable, prompt, material, negligent, satisfactory, and substantial (among many others) and the related adverbs. With vagueness, whether a given standard has been met is a function of the circumstances. For example, how fast a contract party must act to comply with an obligation to do something promptly is a function of what would be reasonable under the circumstances. There’s no specific deadline.
In response to my suggestion that material and materially are vague, Hrafn said this (I added the link, in case you’d find it helpful):
This is true, but the vagueness itself may not be the main issue here, insofar as vagueness consists in susceptibility to sorites reasoning and the existence of borderline cases. The feature you seem interested in here is the context-sensitivity of the terms, that what counts as material is relative to the context with respect to which the respective statement is to be interpreted.
And regarding my invoking the reasonable-person standard, Hrafn said this:
This is also independent of both vagueness and context-sensitivity. It just so happens that in law, the threshold is determined relative to the reasonable person – that is, the fact that the reasonable person is used to determine the threshold is not what makes the term vague or context-sensitive.
Well, after not focusing on what Hrafn had to say, further work on the draft brought me back to it three months later, and something clicked. As you might imagine, yes, Hrafn is right. Duh. But the question is, what implications does that have for my work?
Here’s a relevant paragraph from the entry on vagueness from the Stanford Encyclopedia of Philosophy (here):
‘Tall’ is relative. A 1.8 meter pygmy is tall for a pygmy but a 1.8 meter Masai is not tall for a Masai. Although relativization disambiguates, it does not eliminate borderline cases. There are shorter pygmies who are borderline tall for a pygmy and taller Masai who are borderline tall for a Masai. The direct bearers of vagueness are a word’s full disambiguations such as ‘tall for an eighteenth century French man’. Words are only vague indirectly, by virtue of having a sense that is vague. In contrast, an ambiguous word bears its ambiguity directly—simply in virtue of having multiple meanings.
In that paragraph, tall is analogous to, say, promptly in a contract. It’s meaningless considered in isolation—you’re able to attribute parameters to promptly only when you know the context—or as the Stanford Encyclopedia has it, once you have relativized promptly.
But in addition to the uncertainty that comes from not knowing the context, promptly is indeed susceptible to borderline cases, as Hrafn says—there’s no clear boundary between what is prompt and what isn’t prompt. But court opinions generally don’t feature discussion of borderline cases. Instead, a court is presented with a set of circumstances and it has to choose whether the contract party in question acted reasonably or not. If there’s any hand-wringing over borderline cases, judges tend to keep that to themselves.
(And incidentally, I suggest that the sorites paradox isn’t relevant to interpreting contracts. The sorites paradox is a function of the cumulative effect of incremental minor changes—if you gain a pound one week, you might not be concerned, but if that happens every week for six months, you’d probably end up somewhat perturbed. But contract disputes don’t relate to incremental change sneaking up on you. Instead, courts consider results.)
So mostly I’m concerned with context, not borderline cases. That being the case, is it appropriate for me to use the words vague and vagueness? I think it is. It would be hopeless for me to invent some new label, like context-dependent. Every vague word raises both the issue of context and the issue of borderline cases, so I think it’s OK to use vague and vagueness in connection with one or the other issue or both issues.
With that in mind, here’s a draft of a revised version of section 7.42 of A Manual of Style for Contract Drafting (with strikethrough showing what I deleted and underscore what I added):
Vague words used in contracts include the adjectives reasonable, prompt, material, negligent, satisfactory, and substantial (among many others) and the related adverbs. With vagueness, whether a given standard has been met is a function of the circumstances. Vagueness is generally understood as being a function of words being susceptible to borderline cases—there’s no clear demarcation between being prompt and not being prompt. But another feature of vague words is that whether a given standard has been met is a function of context. For example, how fast a contract party must act to comply with an obligation to do something promptly is a function of what would be reasonable under depends on the circumstances, with the standard being what a reasonable person would have done in those circumstances. In interpreting contracts, the issue of context generally looms larger than does the issue of borderline cases. This manual uses the words vague and vagueness with respect to the issue of context, instead of inventing a label that invokes just that issue.
My thanks to Hrafn for taking the time to share his thoughts.